JMO v Republic (Criminal Appeal E057 of 2023) [2026] KECA 1427 (KLR) (10 July 2026) (Judgment)

JMO v Republic (Criminal Appeal E057 of 2023) [2026] KECA 1427 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1427 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E057 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between JMO Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Kisii (Majanja, J.) dated 27th September, 2018 in HCCRA No. 69 of 2015) Judgment 1.This is a second appeal arising from the conviction and sentence to life imprisonment imposed on the appellant, James Maoga Obuya, by the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 1070 of 2014. The appellant had been charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The particulars of the offence were that on 28th July, 2014, he caused his penis to penetrate the vagina of A.N.M, (real name redacted) a child aged four years, who was to his knowledge his daughter. That in the alternative, he committed an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, on the same date and place by intentionally touching the said minor’s vagina with his penis against her will. He denied the offence. 2.The prosecution called five witnesses. A.N. (PW1) gave unsworn testimony that someone did wrong things to her, removed her pant and the person then slept on top of her on her stomach. She identified the appellant at the dock as Maoga, the person who slept on her. She stated that the incident happened in the appellant’s house and that she lived with the appellant. CPL Stephen Kemei (PW2) and APC Kipkoech Gideon (PW4) from Nyamache Sub-County office recalled that on 28th July, 2014, a lady reported that her husband had defiled their four-year-old daughter. They found the appellant at his house and took him to the police station. CPL Olivia Ledonyo (PW3) from Nyangusu Police Station stated that the appellant was brought in on 1st August, 2014 for having defiled his daughter. The appellant refused to speak when she interrogated him, and she recorded statements from the child and her mother, R.K (Real name redacted as well). Nancy Kwamboka Onkweni (PW5) is the clinical officer who examined the child and noted redness in the labia majora and minora, which was evidence of penetration according to her. She also explained that the swelling and tearing noted were caused by the struggle to penetrate. 3.The appellant gave a sworn statement in his defence. He stated that he had a dispute with his wife on 28th July, 2014 and that the wife left and later returned. He was later arrested. 4.The trial court delivered its judgment on 14th August, 2015, finding that the prosecution had proved its case beyond reasonable doubt. The appellant was thereafter convicted of the main count and subsequently sentenced to life imprisonment. 5.Dissatisfied with the trial court’s decision, the appellant appealed against both the conviction and sentence. The High Court of Kenya at Kisii re-analysed the evidence and delivered its judgment on 27th September 2018. The learned Judge quashed the conviction on incest and substituted it with one of defilement contrary to Section 8(1) of the Sexual Offences Act. It reasoned that there was no evidence of the appellant being the minor’s father, and that the minor’s evidence was that they lived together. The court further found that the mandatory life sentence under Section 8(2) of the Act would apply because the minor was under 11 years of age. It accordingly dismissed the appeal in its entirety. 6.The appellant still aggrieved with the decision of the High Court and has preferred an appeal to this Court. The grounds of appeal in the memorandum of appeal included that the trial and the first appellate Courts had erred by holding that the prosecution had proved their case beyond reasonable doubt; the trial court erred by convicting the appellant upon a defective charge; the first appellate Court had erred in admitting PW1 and her mother’s evidence contrary to Article 50(4) of the Constitution; and, the nature of the sentence meted out by the trial Court was excessive. He prays that this Court allows the appeal, quashes the conviction, sets aside the sentence and set him at liberty. This appeal came up for hearing on 29th April, 2026. The appellant appeared in person and virtually from Kibos Maximum Security Prison and relied on his written submissions. The learned Prosecution Counsel, Mr. Okeyo, appeared for the respondent and fully relied on the respondent’s written submissions. In his written submissions, the appellant urged that his rights to a fair trial under Article 50(2) of the Constitution of Kenya were violated. That this Court should prefer an acquittal based on the high court’s observation that there was no cogent evidence that PW1 was the appellant’s daughter. He also urged that the trial court’s presumption that the minor was his daughter was based on suspicion and cannot prove an inference of guilt unless supported by evidence. 7.The appellant noted that the courts have established that the burden of proof in criminal cases always lies on the prosecution and never shifts to the accused person. He submitted that the high court quashing the conviction of incest and substituting it with defilement means the conviction and sentence by the trial court was founded on a defective charge. That the court’s failure to observe the same and allow amendment of the charges was prejudicial to the appellant. That the prosecution did not therefore prove their case beyond reasonable doubt, and the appellant is entitled to an acquittal. 8.On the elements of the offence of defilement, it was the appellant’s submission that the lack of evidence on record on the age of the minor and the failure by the trial court to note the same made the conviction prejudicial. He noted there was neither an age assessment report from the medical facility nor a birth certificate or baptismal card tendered in evidence to prove the minor’s age. That the minor also did not know her date of birth. Secondly, the appellant urged that PW5’s evidence that the vagina was normal and that the hymen and anus were intact was proof that penetration did not happen. That the element of penetration was therefore not proved to conclude defilement or sexual assault. He stated that since the act of penetration was not proved, subjecting him to life imprisonment violated his right to freedom and security and not to be treated in a cruel, inhuman or degrading manner Article 29(d) and (f) of the Constitution. Thirdly, on his identification as the perpetrator, the appellant noted that the minor called him by his name, Maoga, but did not include in her statement that the perpetrator was Maoga. He urged the recanting of PW1’s evidence for having been compromised by the minor’s mother, who could not be traced to testify in court. 9.The appellant further submitted that, given the contradictions in the evidence of PW1, her evidence was not corroborated to sustain a conviction. That the admissibility of PW1’s evidence under Section 124 of the Evidence Act denied the appellant the right to a fair trial and violated his right to equal protection and equal benefit of law under Article 27(1) of the Constitution. That section 124 presumably prejudices the appellant, as it gives direct orders to the subordinate court to convict on a less or unverified hypothesis of the complainant, leading to a mistrial. He urged that this Court has observed that courts should be cautious before convicting on the uncorroborated evidence of minors or based on a single identifying witness. That the trial court erred in admitting PW1’s evidence, yet it failed to meet the guiding principles in J Heydon Evidence: Cases and Materials (2nd Ed, Butterworths, London, 1984) at page 84 as follows:“First, a child’s power of observation and memory are less reliable than on adult’s. Secondly, children are prone to live in a make-believe world, so that they magnify incidents which happen to them or invent them completely. Thirdly, they are also very egocentric, so that details seemingly unrelated to their own world are quickly forgotten by them. Fourthly, because of their immaturity they are very suggestible and can easily be influenced by adults and other children.” 10.The respondent’s written submissions by Mr. Ong’ang’a Charles, the learned Senior Assistant Director of Public Prosecutions, are dated 28th April, 2026. Counsel limited his submissions on the defilement charge and urged that the conviction and sentence be upheld. He submitted that on the three ingredients for the offence of defilement, the appellant neither contested the complainant’s age nor disputed that he was well known to the complainant. That PW1 indicated she was four years old and in baby class, and the prosecution’s evidence was that the appellant was well known to both the minor and her mother. Third, the conclusion from PW5’s examination of the complainant proved evidence of penetration. Counsel further urged that because the complainant was at all probabilities below 11 years, the mandatory sentence of life imprisonment under Section 8(2) of the Sexual Offences Act should be upheld. 11.This is a second appeal. Our guiding statutory provision for a second criminal appeal is section 361(1) of the Criminal Procedure Code (CPC). It restricts the Court of Appeal to considering only matters of law in second appeals, and it expressly prohibits the court from re-evaluating facts or reviewing the severity of a sentence unless an explicit error of law occurred. The section provides as follows:“A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—a.on a matter of fact, and severity of sentence is a matter of fact; or,b.against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.” 12.In Kibe v Republic (Criminal Appeal 21 of 2019) [2024] KECA 1441 (KLR) (11 October 2024) (Judgment) Neutral citation: [2024] KECA 1441 (KLR) this Court held as follows,“12.This being a second appeal, our jurisdiction is limited to consideration of matters of law only as stipulated under Section 361 of the Criminal Procedure Code. As was held in Reuben Karari S/o Karanja v Republic [1959] 1 EACA 146, a second appeal must be confined to points of law. As to what constitutes “matters of law” in relation to this court’s jurisdiction as the second appellate court, the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji and 3 Others [2014] eKLR characterized the three elements of the phrase “matters of law” as follows;a.the technical element: involving the interpretation of a constitutional or statutory provision;b.the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record; and,c.the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.” 13.Taking into account the range of our jurisdiction in a second appeal, we sieve out the following issues for determination in the present appeal:i.whether the High Court was entitled to substitute a charge of incest contrary to section 20(1) of the Sexual Offences Act with that of defilement contrary to section 8(1) as read with section 8(2) of the Act;ii.whether the ingredients of the offence of defilement or incest were established; and,iii.whether an unlawful sentence was imposed. 14.On the first issue, section 179 of the Criminal Procedure Code provides as follows;“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.” 15.The pertinent issue before us is whether the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act punishable upon conviction by mandatory sentenced to imprisonment for life.is a minor offence to incest contrary to section 20(1) of the Act where upon conviction the accused is liable to imprisonment for a term of not less than ten years, and if the complainant is a minor under the age of eighteen years, liable to imprisonment for life. 16.A cognate offence for purposes of section 179 of the Criminal Procedure Code is a lesser crime that shares essential elements and features with a more serious primary crime, differing mainly in degree or severity. For the initial charge of incest, if convicted the appellant was liable to a sentence of life imprisonment while the purported “minor” or “cognate” offence of defilement, if convicted, the punishment would face a mandatory life sentence. If the evidence proves the elements of incest and defilement and both charges carry similar or possibly similar sentence of life imprisonment, then section 179 of the Criminal Procedure Code could not possibly and simply be relied upon to swap the charges and convictions because the substitute offence of defilement was not minor to incest. We also note the use of “liable to” with regard to a sentence in incest as opposed to the mandatory nature of the sentence with regard to defilement. 17.Accordingly, we are satisfied that the High Court as the first appellate court erred in law when the learned Judge stated;“14.I therefore quash the conviction on incest and substitute it with one of defilement contrary to section 8(1) of the Sexual Offences Act. Since the Child was below the age of eleven (11) years, the life mandatory sentence under section 8(2) of the Act will apply.”Further, we find that the finding by the High Court that save for the conviction on defilement, the appeal is dismissed cannot stand and is liable to be set aside. 18.We turn to whether the ingredients of the offence of defilement or incest were established. We do not see any basis to interfere with the concurrent findings of the trial and the High Courts that on the evidence on record the prosecution had established the age of the complainant was four years, the fact of penetration, and that the complainant PW1 recognised the appellant. PW1 the complainant testified that she was 4 years old in baby class and therefore invariably a minor under the age of 18 years for purposes of section 20 of the Sexual Offences Act. 19.We are satisfied that the High Court erred in law in finding that PW1 was not related to the appellant as a father or half-father for purposes of an offence of incest under section 20 of the Sexual Offences Act. The record shows that PW2 testified that the appellant was the husband of the mother of PW1, the complainant, and that it was the mother who made a report to the police on 28th July, 2014. PW4 also testified that the appellant chased his wife away and when she returned after a month, she found that the appellant, her husband, had defiled the child, PW1. The appellant testified that on 28th July, 2014 he had a dispute with his wife, PW1’s mother. 20.We have considered the highlighted evidence and find that in absence of any other material on record to displace appellant as husband of PW1’s mother, the appellant was found by the trial Court, beyond reasonable doubt, to be the father of PW1. In any event, subsection 22(3) provides that an accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest. In the instant case, the appellant was the husband of PW1’s mother and the presumption that he knew he was the step father of PW1 was not rebutted at all. Further, under subsection 22(1) of the Sexual Offences Act, a father includes a half-father which means a stepfather or an individual who stands in place of a father including a mother’s partner. Beyond reasonable doubt, the evidential material on record showed that the appellant was PW1’s father and in any event, half-father. 21.Our primary duty is to reach a legally sound finding. We have determined that the High Court’s substituted conviction was improper as was an error of law in view of the statutory ingredients of the offence of incest in issue and the evidence on record. In our view trial Court’s factual findings and conviction for incest were correct legal position. We exercise our inherent jurisdiction to make orders that uphold the correct legal position to ensure that the right offence is punished. We consider this to be the just position in this exceptional case especially that the prescribed sentence for the charge of incest in the present case and defilement, in the circumstances, is almost the same, ultimately imprisonment to life. 22.The upshot is that we partially allow the appeal by setting aside the decision of the High Court quashing the conviction and sentence by the trial court on incest and substituting thereof with the conviction and sentence for the offence of defilement contrary to section 8(1) of the Sexual Offences Act. We instead reinstate the conviction and sentence of the trial court. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA.....................................JUDGE OF APPEALE. C. MWITA.....................................JUDGE OF APPEALB. ONGAYA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar