MOO v Republic (Criminal Appeal E168 of 2022) [2026] KECA 1349 (KLR) (10 July 2026) (Judgment)

MOO v Republic (Criminal Appeal E168 of 2022) [2026] KECA 1349 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1349 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E168 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between MOO Appellant and Republic Respondent (Being an appeal arising from the Judgment of the High Court of Kenya at Eldoret (Maina, J) delivered on 16th January 2020 in HCCRA No. 88 of 2019) Judgment 1.Before the Chief Magistrate's Court at Eldoret in Sexual Offence Criminal Case No. 167 of 2018, the appellant, Michael Ochieng Ojoni, was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act. The particulars of the charge indicated that on diverse dates between 15th July 2018 and 19th July 2018 at [Particulars withheld] area in [Particulars withheld] Sub-County within Uasin Gishu County, the appellant intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of A.A., a female juvenile aged 4 years, who was, to his knowledge, his daughter. Arising from the facts of the main count, the appellant faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. 2.The appellant denied the charges, and after a full trial, he was convicted of the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act and thereafter sentenced to life imprisonment. His first appeal to the High Court was dismissed, with the learned Judge holding that although the trial court had erred in convicting the appellant for defilement instead of incest as charged, the error was curable under section 382 of the Criminal Procedure Code. The learned Judge proceeded to convict the appellant under section 20 (1) of the Sexual Offences Act and retained the life sentence.3.The appellant now brings this second appeal, challenging both the conviction and the sentence on, among other grounds, the grounds set out in the supplementary grounds of appeal dated 17th March 2026 as reproduced hereunder:“i.That , the learned High Court Judge erred in law by affirming a sentence of life imprisonment imposed by the trial court under section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006, whereas the appellant had been charged and tried for the offence of incest contrary to section 20(1).ii.That , the learned High Court Judge erred in law by failing to properly interpret and apply section 20(1) of the Sexual Offences Act No. 3 of 2006 regarding the offence of incest and instead relied on sentencing provisions applicable to the offence of defilement.iii.THAT, the learned High Court Judge erred in law by upholding the sentence of life imprisonment without considering the sentencing principles laid down by the Court of Appeal of Kenya in the decision of M.K v Republic.iv.That , the learned High Court Judge erred in law by affirming the conviction and sentence despite the complainant failing to give testimony in court after refusing to continue testifying due to fear, thereby leaving the prosecution evidence incomplete and legally insufficient to sustain a conviction.v.That , the learned High Court Judge erred in law by failing to properly re-evaluate the evidence and the legality of the sentence as required of a first appeal.”4.Earlier, the appellant had, through the original memorandum of appeal, which was filed together with the record of appeal, contended that he was convicted on fabricated, contradictory and uncorroborated evidence.5.This being a second appeal, we are required by section 361 of the Criminal Procedure Code to consider matters of law only. On matters of fact, we are expected to defer to the concurrent findings by the two courts below unless they failed to consider crucial evidence or their findings are so perverse that no reasonable tribunal could arrive at such conclusions. Our jurisdiction does not extend to the severity of the sentence, which is a matter of fact, and we can only interfere with a sentence where it has been enhanced by the High Court or where the subordinate court had no power to pass it. In this regard, in Mwangi vs. Republic [2026] KECA 640 (KLR), the Court held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings.”6.In living up to this mandate, it is imperative to restate the evidence adduced at trial in summary. For the prosecution, the victim, A.A. (PW1), a girl aged about 4 years, testified that on the material dates, her mother had travelled to the village, leaving her alone at home with her father, the appellant. She stated that while her father was bathing her, he inserted his fingers into her private parts. She testified that he inserted his “dudu” (penis) into her vagina, and she felt a lot of pain and cried. Her father threatened to beat her if she reported the matter to anyone. The minor reported the incident to her teacher, Rachel, at Bethel Junior Academy. When she returned home, her father beat her up for reporting the incident, leaving visible marks on her legs.7.Dr. Eunice Temet (PW2) testified on behalf of Dr. Rono, the medical officer who examined the minor. She stated that she was familiar with her colleague’s handwriting and signature, having worked with him for several years. With no objection from the defence, Dr. Temet was permitted to produce the P3 form, filled on 6th August 2018, as an exhibit. It was her evidence that upon examination of the 4-year- old victim, redness on the external genitalia and hymenal tears were observed. No discharge was noted, and the laboratory findings were not recorded in the form. PW2 stated that the findings were consistent with penetration and concluded that the child had been defiled.8.Josephine Kogo (PW3), an advocate working with the Legal Aid Centre (LACE) at Moi Teaching and Referral Hospital, testified that she received a call from Bethel Junior Academy on 19th January 2018 regarding a child who was not walking normally. She advised the school to speak to the child and was shortly thereafter informed that the child had disclosed that her father had inserted his fingers in her vagina. On 23rd July 2018, when PW3 visited her own child at the school, she found an opportunity to speak to the minor, who disclosed that her father had inserted his fingers and also his penis into her vagina. She tried prevailing upon the school authorities to take the child to hospital, but this was not done. The teachers were also not willing to record statements because they feared the appellant. Nevertheless, the appellant was eventually arrested and the child taken to hospital, where, upon examination, it was established that she had been defiled.9.Corporal Hezron Osuma (PW3) was the investigating officer, and he testified that he received a report concerning the defilement on 30th July 2018 and proceeded to the Legal Aid Centre, where he found the appellant. He stated that the appellant was the minor's father and the appellant did not deny being the father of the child. The witness produced a radiology request form indicating the minor's age to be between 3 and 5 years.10.In his defence, the appellant gave sworn evidence. He admitted that the complainant was his daughter. He denied defiling her and stated that he had learnt about the alleged defilement from his wife, who was admitted in a hospital at Bungoma. He stated that he was arrested on 30th July 2018 after being called to the Legal Aid Centre by one Ochieng, who introduced himself as a lawyer. He testified that the child was taken away from him after he took her to the Centre, and he was arrested. He insisted that the case was a frame- up.11.When the appeal came up for hearing, the appellant virtually appeared in person from Naivasha Maximum Security Prison. Learned Senior Assistant Director of Public Prosecutions, Mr. Tanui, represented the respondent. Apart from brief oral highlights during the hearing, the parties mainly relied on their pre-filed written submissions to argue the appeal.12.In his submissions, the appellant argued that he was erroneously sentenced under the wrong provision, stating that although he had been charged with incest, he was convicted for defilement without any amendment to the charge sheet as required by section 214 of the Criminal Procedure Code. He relied on Sigilani vs. Republic [2004] 2 KLR 480 for the proposition that a charge sheet must disclose the offence with sufficient clarity for an accused to understand the charge and prepare a defence.13.Relying on M. K. vs. Republic [2015] KECA 468 (KLR), the appellant argued that the life sentence provided in section 20(1), unlike that in section 8(2), is not a mandatory minimum sentence, and the court retains the discretion to impose a sentence between 10 years and life imprisonment. According to the appellant, the High Court therefore failed to properly interpret section 20(1) of the Sexual Offences Act, resulting in an erroneous imposition of the life sentence.14.On the evidence adduced, the appellant submitted that the minor (PW1) did not complete her testimony. He stated that at the first court appearance, the minor broke down and refused to continue testifying, expressing fear of the appellant. He submitted that a conviction based on incomplete testimony violates the constitutional right to a fair trial under Article 50(1) & (2) of the Constitution. He further submitted that the trial court failed to properly apply section 124 of the Evidence Act, which requires careful scrutiny of the testimony of a child witness in sexual offences. He additionally argued that there was no corroborative evidence to support the minor's testimony.15.Mr. Tanui opposed the appeal, arguing that all the ingredients of the offence of incest under section 20(1) of the Sexual Offences Act were proved. Counsel restated the evidence to buttress this submission. Still on the propriety of the conviction, counsel submitted that the High Court correctly found that the trial court's error in convicting the appellant under defilement provisions was curable under section 382 of the Criminal Procedure Code. According to counsel, the decision of the first appellate court to alter the conviction from defilement to incest fell within its appellate powers as provided by section 354(3) of the Criminal Procedure Code. As to whether the learned Judge delivered on her mandate, counsel relied on Okeno vs. Republic [1972] EA 32 to submit that the learned Judge properly re-evaluated the evidence and came to its independent conclusion.16.We have reviewed the record before us, as well as the submissions and authorities cited by counsel. In our view, the issues arising for determination in this appeal are: whether the learned Judge erred in convicting the appellant under section 20(1) of the Sexual Offences Act and, if not, whether the learned Judge erred in upholding the sentence of life imprisonment.17.The appellant submits that his conviction by the trial court for defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act instead of incest contrary to section 20(1) of the Sexual Offences Act, as charged, was a substantive error that went to the root of the proceedings and could not be cured by section 382 of the Criminal Procedure Code. Indeed, a perusal of the record reveals that the charge sheet dated 7th August 2018 clearly indicates that the appellant was charged with incest contrary to section 20(1). The particulars of the offence were that he caused his genital organ (penis) to penetrate the genital organ (vagina) of A.A., a female juvenile aged 4 years, who was, to his knowledge, his daughter.18.In its judgment, the trial court stated:“The prosecution having proved all the ingredients as set hereinabove, it is therefore my finding that the prosecution has proved its case to the required standard. It is for the above-stated reasons that I find it safe to convict the accused for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.”19.The learned Judge, while appreciating that there was an error, found that the same was curable under section 382 of the Criminal Procedure Code, which provides that:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or otherproceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.”20.The learned Judge altered the conviction from that of defilement to incest. This was a proper exercise of the High Court’s appellate powers under section 354 (3) (a) of the Criminal Procedure Code. The provision is couched in the following terms:“(3)The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may -a.In an appeal from a conviction -i.reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; orii.alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; oriii.with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;”21.The Court in Francis Mburugu Muchena vs. Republic [2011] KECA 31 (KLR) reaffirmed the powers of the High Court under this provision thus:“…under section 354 (3) (a) (ii) of the Criminal Procedure Code, the High Court had power to interfere, it could only do so where special circumstances are shown to exist or where it is clear there was an error in principle…”22.The offences of incest and defilement are both sexual offences involving penetration of a minor, and the appellant was charged with incest from the outset. The ingredients of incest were proved. The appellant was the father of the complainant, and penetration occurred. This was the offence for which the appellant had been charged in the magistrate’s court. The evidence adduced at the trial established both defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act as well as incest under section 20(1) of the Sexual Offences Act. We cannot speculate why the trial magistrate decided to convict the appellant for defilement despite the offence of incest with which he was charged having been proved. The High Court cannot be faulted for proceeding in the manner it did since the action did not occasion any prejudice or injustice to the appellant. That alteration simply resulted in the appellant being convicted of the offence with which he had been charged. Additionally, section 382 of the Criminal Procedure Code provides that no finding, sentence, or order shall be reversed or altered on account of an error that did not occasion a failure of justice. We find that the High Court acted within its legal power and properly corrected the trial court's error. This ground of appeal fails.23.On the claim that the evidence was insufficient to result in a conviction, the appellant contends that his conviction was unsafe because the minor victim (PW1) broke down and did not conclude her testimony, and that the evidence was uncorroborated. We have carefully scrutinised the record, which shows that on 24th August 2018, when the child was called to testify, she broke down and refused to talk. The court took a break, and when the matter resumed, the victim still had difficulty in testifying. The prosecution applied to have the witness stood down so that she could testify on a later date, to which the appellant's counsel raised no objection. On 28th August 2018, when the child was brought back, she gave her evidence and was cross-examined by the appellant. She testified that her father inserted his fingers into her private parts and also inserted his “dudu”, understood to be the penis, in her vagina.24.We do not find any irregularity in the manner in which the victim’s evidence was taken. The trial court properly conducted a voir dire examination to determine the ability and competency of the child to testify. The child was found able to give unsworn evidence. The fact that she initially broke down and was stood down does not render her subsequent testimony inadmissible or unreliable. The trial court, which had the advantage of observing her demeanour, found her credible.25.Regarding corroboration of the child’s evidence, we note that the proviso to section 124 of the Evidence Act allows the court, in a criminal case involving a sexual offence, to convict the accused person on the evidence of the victim alone, where, for reasons to be recorded, the court is satisfied that the victim is telling the truth. In this case, however, the trial court did not solely rely on the child’s evidence. The medical evidence by way of the P3 form corroborated her testimony by revealing redness on the external genitalia and hymenal tears, which, according to the doctor who testified as PW2, were consistent with penetration. We, therefore, find that the conviction was based on cogent evidence and was safe. The learned Judge correctly re-evaluated the evidence and reached the proper conclusion. Accordingly, we find no merit in the appellant’s appeal against conviction.26.Finally, the appellant contends that the learned Judge erred in handing him a life sentence for the offence of incest. Once more, we appreciate that although the severity of sentence does not fall within our remit in a second appeal, the legality of sentence is within our jurisdiction. The learned Judge imposed the maximum sentence of life imprisonment. The question is whether this sentence was lawful. We find that it was. The relevant portion of 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...”27.However, the appellant relied on the Court’s decision in M. K. vs. Republic [2015] KECA 468 (KLR) to argue that under section 20 (1) of the Sexual Offences Act, life sentence is a discretionary maximum sentence. Without going into the jurisprudence relating to the interpretation of the sentence provided in section 20 (1), we only need to observe that where the victim of incest is under the age of eighteen years, the accused person is liable to imprisonment for life. The life sentence imposed in this case was therefore within the lawful range.1.Furthermore, the appeal before us is a second appeal, and the severity of sentence is a matter of fact, not law and by dint of section 361 (1) (a) of the Criminal Procedure Code, this Court is precluded from interfering with a sentence on the ground of severity alone, unless the sentence was enhanced by the High Court, thus bringing it within our remit as per section 361 (1) (b), which did not occur here. The appellant's challenge to the sentence falls within the ambit of severity, which is a matter of fact, and cannot be entertained by this Court on a second appeal. In light of the foregoing, we find that the sentence of life imprisonment was lawful, and we are precluded from interfering with it on the ground of severity.2.On the question of the proportionality of the life sentence to the facts of the case, we note that this is a case of incest involving a 4-year- old child. The offence was committed by the very person who was supposed to take care of her. As such, we find that the courts below correctly considered the aggravating circumstances and the prevalence of the offence, and cannot be faulted for imposing the maximum sentence.3.In the end, we find the conviction safe and the sentence to be within the legal framework. We, therefore, find no merit in this appeal and dismiss it in its entirety.DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY 2026.M. GACHOKA C.Arb, FCIArb…………………………. JUDGE OF APPEALW. KORIR…………………………. JUDGE OF APPEALL. M. NDOLO…………………………. JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR