https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1059

JNM v Republic (Criminal Appeal 83 of 2018) [2026] KECA 1059 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1059 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 83 of 2018 M Ngugi, JA May 29, 2026 Between JNM Appellant and Republic Respondent (eing an appeal from the Judgment of the High Court of Kenya at Nakuru (J. Mativo, J.) dated and delivered by (Prof. J. Ngugi, J.) on 19th November 2018 in HCCRA No. 209 of 2011) Judgment 1.JNW, the appellant herein, was charged with the offence of incest by a male person contrary to section 20 (1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 19th April 2010 and 22nd April 2010 at (Particulars withheld) Area, Nakuru District, within Rift Valley Province, the appellant unlawfully and intentionally committed an indecent act by inserting his penis into the vagina of Z.W., a child aged 15 years whom, to his knowledge, was his niece, and which caused penetration. 2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11 of the Sexual Offences Act. The particulars of the offence were that on the same dates and in the same place, the appellant unlawfully and intentionally committed an indecent act with a child namely Z.W., aged 15 years, by touching the vagina of Z.W. 3.The appellant was arraigned before the trial court in the Nakuru Chief Magistrate’s Court in Criminal Case No. 68 of 2010, where he pleaded not guilty to both counts. Upon full trial, the appellant was convicted on the main charge and sentenced to life imprisonment. 4.The appellant was dissatisfied with those findings. He lodged an appeal in the Nakuru High Court, namely HCCA No. 83 of 2018. In the judgement of the trial court delivered on 19th November 2018, the appellant’s appeal on conviction and sentence was dismissed. It is these findings that have triggered this appeal. 5.The appellant filed his undated notice of appeal on 20th December 2018.He also filed his memorandum of appeal, grounds of appeal and supplementary grounds of appeal. He raised the following abridged grounds of appeal: that the prosecution failed to discharge its burden of proof to the required standard; that his constitutional rights were violated; that the evidence adduced before the trial court was marred with inadequacies, the life sentence imposed on him was unlawful, harsh and excessive, his defence was not considered and his evidence was not reevaluated or reconsidered afresh by the High Court. For those reasons, the appellant prayed that his appeal be allowed by quashing the conviction and setting aside the sentence so that he is set at liberty. In the alternative, he prayed that his sentence be reconsidered. 6.The appeal was canvassed by way of written submissions on 16th March 2026. The appellant represented himself while Senior Assistant Director of Prosecution, Mr. Omutelema, acted for the State. In his undated written submissions, the appellant lamented that the medical evidence tendered was not sufficient enough to point to a finding that penetration was proved beyond reasonable doubt. He was also doubtful as to the complainant’s age absent an age assessment report. Lastly, on sentence, the appellant submitted that the same was too harsh. He urged this Court to invoke section 333 (2) of the Criminal Procedure Code and give a lesser sentence, taking into account he period spent in custody during trial. For those reasons, he prayed that his appeal be allowed. 7.The respondent opposed the appeal. Counsel filed written submissions dated 28th June 2024. He submitted that all ingredients of the offence of incest, that is, the appellant being a male, the complainant, a female known to the appellant within the prohibited range of kinship, penetration, the complainant’s age and the appellant’s identity as the perpetrator, were all proved beyond a shadow of a doubt. Secondly, the appellant’s defence was considered but rightly rejected. Lastly on sentence, it was submitted that both courts below considered the aggravating circumstances to give a lawful sentence of life imprisonment. He prayed that the appeal be dismissed. 8.This is a second appeal. Our jurisdiction is limited to parameters couched in section 361 of the Criminal Procedure Code. This Court in Dzombo Mataza vs. Republic [2014] eKLR further explained our role as a second appellate court as follows:“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 9.We shall therefore constrain ourselves to that jurisdiction. At the outset, we also observe that the High Court, sitting as a first appellate court, did re-evaluate the evidence that was tendered, contrary to the allegations by the appellant. In establishing whether the ingredients of this offence were considered by the two courts below, we find that on the prohibited range of kinship, both courts found that the appellant, a male, was an uncle of the complainant, a female. We note that the prosecution called PW1, the complainant, and PW2, Eunice Waithera, the appellant’s sister-in-law, as witnesses, confirming this fact, and the first appellate court reevaluated that evidence as required by the law. 10.Turning to the complainant’s age, both courts confirmed that the complainant testified that she was 15 years old. This was corroborated by the trial court’s observation during trial, the charge sheet, the P3 form and the PRC form. On penetration, both courts confirmed from the complainant’s testimony, whose evidence was found to be believable, coupled with the P3 form and PRC form, as well as the testimony of PW3, Dr. Samwel Onchere, a senior medical officer at Nakuru Provincial General Hospital, that there was penetration, as defined in section 2 of the Sexual Offences Act, between 19th April 2010 and 21st April 2010. 11.On the identity of the perpetrator, both courts confirmed that the complainant was at the time of the offence living with the appellant. During her testimony, her demeanor was observed to be of a person telling the truth. The appellant was well known to the complainant. That the appellant sexually assaulted her on several occasions. He threatened her not to tell anyone. When she informed his wife, the complainant was told that those were “acts of a drunkard”. This was a case of recognition rather than identification. Her evidence satisfied the test set out in the proviso to section 124 of the Evidence Act. As such, the appellant’s identity as the perpetrator was not in doubt. 12.On the appellant’s defence, this Court finds that, in fact, both courts extensively considered all facets of it. Ultimately, it did not shed any gaps on the prosecution’s evidence that remains watertight. The appellant also complained that his constitutional rights were violated. However, that line of argument is rejected for two reasons: firstly, that ground was not raised in the High Court. It is therefore an afterthought. Secondly, the appellant failed to elucidate how those rights were violated. 13.In his appeal on sentence, the appellant was condemned to serve life imprisonment. We are alive to the provisions of section 20 (1) of the Sexual Offences Act which reads as follows:“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.” 14.It has already been established that the appellant’s conviction is safe.Having also established that the complainant was 15 years old at the time of the offence, and therefore under the age of 18 years, the law clearly provides that a convicted person, under this provision, shall be sentenced to life imprisonment. The said provision does not give a court discretionary powers to give a lesser sentence than what is imposed. For that reason, section 333 (2) of the Criminal Procedure Code does not apply. 15.Additionally, the Supreme Court has clarified in Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic vs. Manyeso [2025] KESC 16 (KLR), that mandatory and minimum offences set out in the Sexual Offences Act are lawful. 16.Accordingly, we come to the conclusion that the appellant’s appeal lacks merit. It is hereby dismissed. We uphold his conviction and affirm the sentence. DATED AND DELIVERED AT NAKURU THIS 29TH DAY OF MAY, 2026.MUMBI NGUGI…………..............………..JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.…………...…................………..JUDGE OF APPEAL MURUNGI B. KAIRARIA…………............………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR