[2025] KEHC 4209 (KLR)

JMC v Republic (Criminal Appeal 101 of 2023) [2025] KEHC 4209 (KLR) (Crim) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4209 (KLR)

Republic of Kenya

In the High Court at Nyandarua

Criminal

Criminal Appeal 101 of 2023

KW Kiarie, J

April 3, 2025

Between

JMC

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S. O. Case No. E041 of 2022 of Principal Magistrate’s Court at Engineer by Hon. E. Wanjala(miss)– Principal Magistrate)

Judgment

1. JMC, the appellant herein, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of the offence were that on diverse dates between September 2015 and the 3rd day of December 2015 at the [Particulars Withheld] in Kinangop within Nyandarua County, being a male person, caused his penis to penetrate the vagina of C.M.K., a female child aged fourteen years, who was to his knowledge his niece.

3. The appellant was sentenced to twenty years imprisonment. He has appealed against both conviction and sentence. He was in person and raised the following grounds of appeal:a.The learned trial magistrate erred both in law and fact by convicting the appellant yet failed to find that the charge sheet was defective.b.The learned trial magistrate erred in both law and fact by convicting the appellant without determining that the prosecution did not conclusively prove the elements of the offence.c.The learned trial magistrate erred in law and fact by failing to afford the appellant a fair hearing.d.The learned trial magistrate erred in law and fact by sentencing the appellant’s defence despite being cogent and believable.e.The learned trial magistrate erred in matters of law and fact by imposing a sentence on the appellant that is not only excessive compared to the circumstances of the offence but also unlawful.

4. The state opposed the appeal through Odero vena. It was contended that the prosecution proved its case to the required standards and that the appeal lacked merit.

5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs Republic [1972] E. A 32 to guide my decision-making process.

6. Although the appellant argued that the charge was defective, he failed to demonstrate any defect. My examination of the charge did not reveal any.

7. Section 20 (1) of the Sexual Offences Act provides:Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

8. From the provisions of this section, the ingredients for incest are as follows:a.The accused must be a male;b.The victim must be a female;c.She must be his daughter, granddaughter, sister, mother, niece, aunt or grandmother;d.He must know the relationship; ande.There must be penetration.

9. C.M.K. (PW1) testified that the appellant was her step-uncle. She gave evidence of consensual sexual intercourse between the two. At the time of the offence, she was 14 years old, and the appellant lured her with money, sweets and coke. They had sexual intercourse several times, and as a result, she conceived. Her mother, PW2 and PW3, in their evidence, confirmed that the appellant was the complainant’s uncle.

10. The prosecution proved that the complainant is the appellant's niece.

11. The complainant’s mother (PW2) testified that they accidentally learned about the relationship between the complainant and the appellant. This is when the complainant and her brother PW3 disagreed. PW2 added that when the appellant was summoned, he pleaded that the matter should not be reported.

12. JMC, the appellant, contended that the complainant’s father owed him some money. When he demanded to be paid, he was falsely implicated. He demanded a DNA examination to be done, but the child was hidden in Gatundu.

13. Dr. Maingi (PW4) examined the complainant on December 16, 2015. He established that the hymen was broken. She was pregnant. At the time of examination, she was 14 years old. The proviso to section 124 of the Evidence Act states:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

14. The medical evidence supports the complainant's claim that she was defiled. The only outstanding issue is the identity of the defiler.

15. PC Everlyn Cherotich’s (PW6) evidence raised a red flag. During cross-examination, this is what she said:In 2017, I never said I could not trace her. There was no issue of DNA because you defiled her even though the pregnancy was not yours, but you showed her to sleep with men. [Emphasis added]

16. This evidence contradicted the complainant, who stated that the appellant was responsible for her pregnancy. While DNA is not always essential, in this case, it was vital to investigate and eliminate uncertainties in the prosecution's case. Neglecting to do so proved detrimental to the prosecution's argument.

17. The prosecution did not prove to the required standards. The conviction is quashed, and the sentence is set aside. The appellant is at liberty unless otherwise lawfully held.

DELIVERED AND SIGNED AT NYANDARUA THIS 3RDDAY OF APRIL 2025KIARIE WAWERU KIARIEJUDGE