https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10899

JMM v Republic (Criminal Appeal E019 of 2025) [2026] KEHC 10899 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10899 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E019 of 2025 AM Okutoyi, J July 16, 2026 Between JMM Appellant and The Republic Respondent (Being an appeal from the Conviction and Sentence in Criminal Case Number SO E020 of 2024 by Hon. V. M Nyaga in the Principal Magistrate’s Court at Etago) Judgment Introduction 1.The Appellant JMM was convicted of the offense of incest contrary to Section 20(1) of the Sexual offences Act (SOA) in Etago Sexual Offences Case No. E020 of 2024. The particulars of the offence are that the Appellant on diverse dates between January 2023 and March 2024 at [Particulars Withheld] Sub location, Gucha South Sub County, within Kisii County being male intentionally caused his penis to penetrate the vagina of J.K.M, a child aged 16 years old who to his knowledge was his sister. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act (SOA). Following a full hearing the Appellant was convicted and sentenced to serve life imprisonment. 2.Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein. In summary, the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, failing to consider his defence and the sentence meted was illegal and improper in the circumstances. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. In the alternative review the excessive sentence. 3.On 21st May 2026, Parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions. The Appellant was not certain if he had filed and served his written submissions. The Respondent on their part confirmed filing and service of written submissions dated 6th March 2026. 4.At the time of writing this judgement, only the Respondent had filed submissions. Analysis and Determination 5.This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 6.Before delving into the crux of the appeal, the court takes cognizance that the Appellant on his last ground of appeal sought to erect more grounds of appeal. This court takes note that the Appellant was served the record of appeal on 6th February 2026. The Appellant subsequently didn’t seek leave under section 350 (v) or the CPC or raised any other grounds, as such the ground is moot. 7.I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings, and the record of Appeal. As such, the following issues arise for my determination:a.Whether the Prosecution proved its case beyond reasonable doubt.b.Whether the Accused had a plausible defence which cast doubt on the Prosecution case.c.Whether the sentence was harsh and excessive. Whether the Prosecution Proved its Case Beyond Reasonable Doubt 8.The Appellant was charged under Section 20 (1) of the Sexual Offences Act which 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” 9.In JMM v Republic [2023] eKLR, the Court in its interpretation of Section 20 (1) of the SOA identified the critical elements that the prosecution needs to establish and prove beyond reasonable doubt. The elements are: the relationship between the victim and the accused; the age of the victim who should be below 18 years; the fact of sexual penetration; and lastly, the identity of the culprit. Also, where a victim is under the age of 18 years, the offence carries a sentence of life imprisonment. 10.The relationship between the Appellant and the Victim is not in doubt. The Victim in her testimony identifies the Appellant as the brother.The Appellant equally in his defense admits that the victim is the sister. This is corroborated by their brother DW2. Section 22 of the SOA provides the test of relationship to include brothers. Further, it is clearly observed that the appellant had knowledge all along that the victim was his sister. From the admission and evidence on record, it is clear that the Appellant is a brother to the victim under Section 22(1) of the SOA, thus legally charged with the offence of incest. 11.As to the proof of age of the victim, the complainant’s birth certificate was produced as Pexh 1, indicating she was born on 26th January 2008. She was 16 Years old as at March 2023 when the offence is alleged to have taken place. 12.On penetration, the Complainant testified that the appellant has been having unprotected sex with her since early 2023 until sometimes in March 2024. That the Appellant would remove her trousers and panty then sleep with her in the bedroom. All this was done while the Appellant’s wife was away and repeatedly it turned out to be a routine. However, when she got pregnant and it came to the realization of the Appellant’s wife, the Appellant facilitated an abortion by giving out Kshs.3,000. An abortion which was supposed to be facilitated by the Appellant’s wife. This abortion which was procured from a local chemist was not successful. Eventually, the Complainant reported the matter to the Local chief, who in turn visited her school. Upon a meeting at the School, the Deputy Head together with the Chief reported the incident to Nyamarambe police station. She was then taken to Nduru Sub County Hospital for examination where she was found to be pregnant, hymen missing and white discharge from her vagina was observed. 13.Sophia Amoro PW2 the Complainant’s teacher at [Particulars Withheld] Comprehensive School stated that the Complainant explained to her that the Appellant had been having sex with her and she last had her periods on February 2024. She then reported the matter to the Nyamarambe Police Station and the Complainant was taken to hospital. 14.PW1 Lawrence Oriki Manyura, a clinical officer at Nduru Subcounty Hospital testified that after examination, the Complainant’s tested positive for a pregnancy test, the hymen was broken and that she had whitish discharge from her vagina. He produces the Treatment notes, Laboratory Request Forms, Post Rape Care form and P3 Form. The doctor concluded that there was vaginal penetration resulting to a pregnancy, he recommended antenatal clinics. From the testimony of the Complainant and of PW1, it is clear that penetration was established. 15.On identification of the perpetrator, the Complainant stated that it was the brother, the Appellant who repeatedly defiled her. She stated that he lived in his house after she was mistreated and chased away by relatives, including DW2 who was the brother too. That Appellant would repeatedly defile her in a bedroom wherein they shared with the Appellant’s daughter, and the first time is when the Appellant’s wife was away attending a funeral. From then it turned out to be a habit of the Appellant. 16.Pursuant to the above analysis, this court is satisfied that the prosecution was able to prove beyond reasonable doubt the element of the offence. Whether the Accused had a Plausible Defence which Cast Doubt on the Prosecution’s Case. 17.When he was placed on his defence the Appellant admitted that the Complainant was his sister and he had to house her after she was chased away by their aunt for stealing. It was his testimony that the complainant had a rampant indiscipline issue and numerous sexual relationships with boys, and she would beat her for that and equally assaulted by the boyfriends for cheating. That at one point she was almost being married to one of the boys. It was the Appellant’s defence that the Complainant was just an ill-mannered and that the charges are not true but only meant to fix him 18.The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the complainant. As guided by Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: 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 theevidence 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.” (Underlined for emphasis) 19.For a court to convict an accused person of a sexual offence, only on the basis of the evidence of the victim, such court must be satisfied that the victim is telling the truth. In its judgment, the trial court was persuaded that the Complainant of 16 years then understood the nature and importance of oath, further the court found no reason as to why the Complainant would fabricate charges against the Appellant and not even DW2 with whom she had lived with. The trial court rightfully found that the Appellant’s defence did not shake the prosecution case, but sought to justify the complainant’s pregnancy arose from other relationships, including those of boys and boda boda riders. 20.Having carefully considered the entirety of the evidence on record and the applicable law, I am satisfied that the prosecution has discharged the burden placed upon it by law and had proved beyond reasonable doubt each of the essential ingredients of incest. Whether the Sentence was Harsh and Excessive 21.Sentencing is an exercise of judicial discretion which must be exercised judiciously and in accordance with the law. Section 20 (1) of the Sexual Offences Act provides for a life sentence for the offence of incest by proving that:“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” 22.Parliament deliberately prescribed the ultimate custodial sentence for such offences in recognition of the heightened vulnerability of child victims and the exceptional gravity attendant to sexual abuse committed within the family. 23.The Supreme Court in Republic v Manyeso [2025] KESC 16 (KLR) reaffirmed that where Parliament has prescribed a lawful sentence under the Sexual Offences Act, an appellate court ought not to interfere uncles recognized principles for appellate interference with the sentence are established. I find no such basis in this appeal. 24.Further, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the courts observed that incest was among the offences Parliament regarded as sufficiently grave to warrant life imprisonment in appropriate cases to reflect the seriousness of sexual violence and protect vulnerable victims. 25.Justice W Musyoka in TOM v Republic [2020] KEHC 5081 (KLR) whilst frowning on offenders who are seemingly taking advantage of a trust bestowed upon them and worse seeking lenient sentences due to the age of the victims held as follows:“…the prosecution advantages the offender rather than the victim, yet incest, which is really defilement committed within the family, ought, to my mind, to be the more serious of the two, given that the same amounts to a breach of trust by the offender and it is actually two offences in one. The child victim trusts the offender to be his or her protector, on account of the filial relationship, and any sexual attack on him or her would be a serious breach of that trust. The law ought to take a more serious view of defilement within the family as a result. That, unfortunately, does not appear to be the case in practice, and it appears to be the policy, since the prosecution appears to prefer mounting incest charges rather than the more serious defilement charges. In my view, this is an area crying out for reform” 26.The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he prayed for leniency and non-custodial sentence. The court also considered that the accused is a first offender and sentenced him to serve a life sentence in jail. 27.This court has also considered the aggravating circumstances in the present case involving an orphan minor, the perpetrator not a stranger, but the complainant’s own brother who exploited the trust and protection bestowed upon him to sexually violate the victim. 28.Incest represents one of the most reprehensible forms of sexual violence because it destroys not only the bodily integrity of the victim but also the sanctity, security and trust that ought to exist within the family unity. The psychological, emotional and social scars suffered by victims of incest are profound and long lasting. The abuse of a close familial relationship constitutes a serious breach of trust which significantly aggravates the offence. 29.Mitigation can therefore not eclipse the seriousness of the offence, the devastating impact upon the child victim, the abuse of the sibling relationship and the overriding public interest in protecting children from sexual exploitation within their own homes. 30.Clearly from this case, the abuse was not easy to be uncovered and it took the intervention of local chief. This court equally notes the conduct of the Appellant that he fled from the court’s jurisdiction not once but for a prolonged period. 31.After careful consideration of the evidence on record, the mitigating circumstances and the aggravating factors, this Court is satisfied that this is a proper case for the sentence prescribed by law. Disposition 32.Accordingly, this courts finds no error in the Trial Court’s finding on conviction and sentencing. As such the trial court judgement and sentencing of life imprisonment is hereby upheld. 33.This appeal is dismissed in its entirety. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY 2026.ANNE. M. OKUTOYIJUDGEJudgment Delivered in the Presence of:Japheth Mogere Moses: Appellant in person from Naivasha Maximum Prison.Mr. Koima for the State.Ruth Mokeira-Court Assistant.