https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11208

Kazungu v Republic (Criminal Appeal E046 of 2026) [2026] KEHC 11208 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11208 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E046 of 2026 C Akaigwa, J July 23, 2026 Between Julius Kazungu Appellant and Republic Respondent Judgment 1.Julius Kazungu, the Appellant herein, was convicted of the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006, with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act and he was sentenced to fifteen (15) years imprisonment. 2.He appeals against both the conviction and the sentence, raising four grounds of appeal, primarily challenging the evidence of the minor, the credibility of prosecution witnesses, and the trial court's evaluation of the evidence. 3.The grounds of appeal are set out as follows;a.The trial court erred in law and fact by failing to see that my rights of fair trial were violated contrary to Article 25 and 50 of the constitution of Kenyа.b.The trial court erred in law and fact by failing to see that the evidence by the prosecution had filed to meet the threshold of beyond reasonable doubt.c.The trial court erred in law and fact by failing to see that the matter was poorly investigated.d.The trial court erred in law and fact by dismissing my defence testimony off hand. 4.The State/Respondent filed a Cross-Appeal, contending that the sentence of 15 years was unlawful and requested that it be enhanced to Life Imprisonment as mandated by the Sexual Offences Act for incest involving a minor. B. Background And Evidence 5.The prosecution's case rested largely on the testimony of the minor (PW2), the investigating officer (PW5), and medical evidence (PW4). 6.The Appellant, in his defence, denied the allegations, introduced evidence of prior interpersonal conflicts with the complainant's mother, and argued that the minor’s medical condition was due to liver complications rather than abuse. 7.The Prosecution vide their submissions dated 24th June, 2026, vehemently opposed the Appeal. 8.The State also filed is the Notice of cross appeal dated the same date seeking to have the sentence meted enhanced. This is premised on Section 20(1) of the Sexual Offences Act prescribes life imprisonment for incest where the victim is below the age of eighteen (18) years. 9.The Respondent relied on the Supreme Court case of Muruatetu & Another v Republic addressing the constitutionality of the death penalty, it specifically clarified that this did not invalidate the minimum sentences prescribed by the Sexual Offences Act. 10.The trial court’s sentence of 15 years falls below the statutory minimum for this offence, the Respondent’s argument is legally sound. 11.Should the Court find the conviction safe upon final review, it is legally bound to ensure the sentence aligns with the mandatory provisions of the Act. C. Issues For Determination 12.The primary issues for this Court to determine are:i.Whether the prosecution proved the ingredients of the offence of Incest beyond reasonable doubt.ii.Whether the trial court erred in its assessment of the minor's credibility, particularly in light of the alleged contradictions and the voire dire process.iii.Whether the trial court failed to consider the defence evidence regarding interpersonal conflicts.iv.Whether the sentence imposed by the trial court was lawful, and if the Cross-Appeal should be allowed. D. Analysis And Determination Credibility and Evidence 13.The Court finds that the identification of the Appellant as the father ("Juli") by PW2 was direct. 14.The Court acknowledges the principle in Anjononi & Others vs. Republic (1980) KLR 59 that identification by recognition is inherently more reliable than the identification of a stranger. The Respondent produced medical exhibits including two P3 forms, treatment notes, and laboratory requests via PW4 . 15.The Court must determine if these documents provide a sufficient nexus to establish penetration. The Court also notes the testimony of the investigating officer, PW5, regarding the minor’s alleged report of being given alcohol, which the Appellant challenges as absent from the minor’s own testimony. 16.The Court notes the Appellant's argument that the trial court failed to evaluate the testimony of the mother concerning differences between herself and the Appellant, and between herself and the Appellant's mother. 17.The Court finds itself tasked with reconciling the prosecution's evidence with the Appellant's contentions;a.that medical findings are consistent with pre-existing liver complications, the "first report" principle from Terekali & Another vs. Republic [1952] EACA was not met, andb.that there existed significant bad blood between the complainant’s mother and the Appellant’s family. 18.Further, the central issue for determination is whether the prosecution has discharged its burden of proving the charge of defilement beyond reasonable doubt. It is an established principle that the prosecution must prove all ingredients of the offence. 19.The failure to prove even one essential ingredient is fatal to the prosecution’s case. 20.Upon close scrutiny of the testimony of PW1, the complainant’s mother, it is evident that the complainant was unwell and admitted to the Intensive Care Unit (ICU) in a critical condition. The medical evidence indicates that the insertion of a urinating aid was necessary due to her critical health status, which provides a plausible medical explanation for the physical findings initially alleged to be indicative of defilement. 21.The court is guided by the principle that an expert witness must explain the reasoning behind their opinion. In this matter, the prosecution failed to provide a plausible expert explanation linking the physical findings to the alleged offence, thereby raising more questions than answers. 22.The standard of proof in any criminal matter is that of ‘proof beyond reasonable doubt’. This is not a mere formality or suggestion but a substantive requirement that must be addressed and guarded jealously. 23.The Court finds that while the prosecution established a prima facie case, the material contradictions highlighted by the Appellant specifically;a.The minor's testimony during cross-examination where she stated "my father did not do anything to me”.b.The existence of bad blood and the conflict between the parties potentially clouds the motive behind the criminal charge.c.The medical evidence indicating that the insertion of a urinating aid was necessary due to her critical health status provides a plausible medical explanation for the physical findings initially alleged to be indicative of defilement. 24.These, together with other inconsistences in the evidence adduced herein cannot be ignored. F. Disposition And Final Orders 25.Upon careful review of the evidence, the trial record, and the submissions of both parties, the Court finds that the conviction of the Appellant was not supported by evidence that met the threshold of ‘proof beyond reasonable doubt’ due to the material contradictions in the prosecution’s case and the failure to adequately address the defence’s evidence regarding interpersonal conflict and the medical challenges faced by the minor. 26.Consequently, this Court allows the Appeal, quashes the conviction, and sets aside the sentence imposed by the trial court. 27.The Respondent’s Cross Appeal for an enhanced sentence is hereby dismissed, as the primary conviction which formed the basis of the sentence has been set aside. 28.It is hereby ordered that the Appellant be set at liberty forthwith, unless otherwise lawfully held in custody for any other matter.It is so ordered. DATED AND DELIVERED AT MALINDI THIS 23RD DAY OF JULY, 2026C.AKAIGWAJUDGE