https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9848

Mumbo v Republic (Criminal Appeal E115 of 2025) [2026] KEHC 9848 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9848 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E115 of 2025 LM Wachira, J July 3, 2026 Between Gilbert Ogot Mumbo Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Nyando criminal case no. E035 of 2024 by the Hon. L.N. Kiniale, SPM) Judgment 1.Gilbert Ogot Mumbo the Appellant herein was charged with the offence of Incest contrary to section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars were that on 10th day of May, 2024 at Pap Onditi location in Nyakach Subcounty within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of P.A. O, a child aged 10 years. 2.In the alternative charge the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 10th day of May, 2024 at Pap Onditi location in Nyakach Subcounty within Kisumu County, the Appellant intentionally and unlawfully touched the breasts, buttocks, anus and vagina of P. A.O, a child aged 10 years. 3.The accused pleaded not guilty to the main and alternative charges.At the hearing, the prosecution called 4 witnesses. The Appellant was put on his defence and in sworn defence stated that he was seeking forgiveness and would never repeat it again. He did not call any witness. 4.In her judgment, the trial Magistrate convicted the Appellant for the offence of Incest and after mitigation the trial court sentenced the Appellant to serve life imprisonment. 5.Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds:-i.That the trial court erred in law and in fact in failing to afford the Appellant the Constitutional right to affair trial as envisaged under Article 50 of the Constitution.ii.That the trial court erred in law and in fact in convicting the Appellant based on his weak defence.iii.That the trial Court erred in law and in fact in failing to consider that the prosecution evidence was contradictory.iv.That the trial court erred in law and in fact in failing to find that the prosecution failed to call crucial witnesses to testify.v.The trial magistrate erred in law and in fact in failing to find that the prosecution had not proved penetration to the required standards.vi.The trial magistrate erred in law and in fact in failing to find that the constitutional rights of the Appellant had been breached by his delay in custody before he was arraigned in court.vii.The trial magistrate erred in law and in fact in denying the Appellant the least prescribed sentence. 6.The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Trial Court Evidence 7.PW1 was the mother to the Complainant. She told court that on the material day she came from church at about 6:30 pm. When she got home, she did not find the minor outside the house. She got into the home and found the minor in bed with the Appellant herein who is the father. That the minor was lying down without clothes from the waist down and the father, was also without clothes from the waist down and he was on top of the complainant. 8.PW1 told court that she raised alarm and then removed the Appellant from the minor. Her sister in law came to the scene bit did not get inside the house. PW1 narrated to her and the other neighbours what was happening and they advised that the incident be reported to the authorities. That she reported to the village elder and then to the police and they were referred to hospital. 9.The Appellant was taken to the station by irate neighbours and also taken to hospital and examined. He was then charged in court. 10.PW1 told court that the minor was born on 18th February, 2014 and she produced in court the immunization card that shown the date of birth as above. 11.PW2 was the minor. She confirmed her date of birth as 18th February 2014. She told court that on 10th May 2024, she was home and the father was also home. He sent her to call her sibling Kenzy and when Kenzy arrived, he sent her (Kenzy) to buy bananas and then to take the said bananas to their grandmother’s home. The minor told court that the father who is the Appellant then called her to the bedroom where he removed his clothes and removed hers and inserted his penis into her vagina. 12.The minor told court that the mother arrived home from church and found her and her father on the act. She raised alarm and that is when the village elder and neighbours came and they were taken to the police station and then hospital. The minor told court that the Appellant was drunk and even sought to pardon him for the commission. 13.PW3 was the clinical officer who had examined the minor and the Appellant and filled the P3 forms. She told court that the patient was brought in with history of sexual assault. Upon examination, PW3 noted bruises and lacerations on the labia majora and a whitish discharge. The hymen was however intact. PW3 produced in court the P3 Form, PRC Form, Laboratory Report and treatments notes to court as exhibits. Her finding is that the patient had been defiled. 14.PW3 also examined the Appellant but no remarkable findings were made. He produced his treatment notes and P3 from as exhibits. 15.PW4 was the investigating officer based at Pap Onditi Police Station. He received the report of Incest and referred the victim to hospital. He also received the Appellant who had been brought to the station by irate members of the public. He was also escorted to hospital where he was examined. He recorded the witness statements and later charged him with this offence. 16.In his defense, the Appellant gave sworn evidence. He did not call any witness. He only asked for forgiveness stating that he will never repeat this again. Appellant’s Submissions 17.The Appellant submitted that the there was no proof of penetration. His submission is that there was no clear evidence of penetration despite PW1 stating that she found him on top of the complainant. That the hymen was found to be intact, which tallies with the evidence of the minor that nothing of this kind had happened before. 18.He further submitted that he was denied a right to legal representation which is a right under Article 50 of the Constitution. That based on the breach of this right, the conviction and sentence should be set aside. 19.He further submitted that the trial court convicted him because of his weak defence, when he stated that he sought forgiveness and would never repeat such a thing again. He submitted that the trial court failed to consider that he was a lay man and was confused and tongue tied when he was asked to defend himself. 20.The Appellant submitted that there were material contradictions in the prosecution evidence. That while PW1 and PW2 stated that he was drunk, the clinical officer indicated that there was no use of drugs and alcohol. That on the circumstances surrounding the defilement, the PW1 had stated at one point that she found the minor seated in the bedroom with the Appellant. Yet at another point she states that she found them in the act. 21.His submission is that the evidence led by the prosecution was so contradictory and the court erred in founding a conviction on the said evidence. 22.The Appellant further submitted that crucial witnesses who were the siblings of the minor had not been called as witnesses. 23.On breach of his rights, the Appellant submitted that he was arrested on the 11th May, 2023 and arraigned in court on the 13th May,2023. According to him, those were clear 3 days and the Respondent did not give any reasons for his incarceration. He urged the court to consider this and acquit him. 24.Finally, he submitted to the prescribed sentence, arguing that in as much as the court has discretion, the maximum sentence prescribed for the offence is life imprisonment, the discretion was on the judicial officer. He argued that the parliament set the minimum and mandatory sentences and urged the judiciary to exercise its discretion and give appropriate sentences. Respondent’s Submissions 25.In opposing the appeal, the Respondent submitted on the evidence of age, penetration and proof that the Appellant was the perpetrator. They submitted that the minor was aged 10 years as clearly demonstrated by the immunization car. On penetration, the Respondent submitted that the testimony of the clinical officer (PW3) indicated that there was sexual intercourse. On the perpetrator, the Respondent submitted that the testimony of PW1 was that she found the minor and Appellant in bed on the act and the minor confirmed this to the court. 26.The Respondent urged the court to find that the prosecution had proved the ingredients of the offence of incest and not interfere with the finding of the trial court. Analysis and Determination 27.The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 28.Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I frame the following issues for determination:-i.Whether the ingredients of the offence of incest and indecent act with a child were proven to the required standard.ii.Whether the learned trial magistrate erred in law and facts in failing to consider the contradictions and gaps in the evidence of the prosecution witnesses.iii.Whether the trial magistrate erred in law and fact by failing to find that the Appellant had been denied his constitutional rights, to wit right to counsel and whether his rights were breached by the alleged delay in arraigning in to court.iv.Whether the sentence is excessively high. 29.In a charge of incest, the prosecution must prove 3 elements being, penetration, the blood relationship and proper identification of the perpetrator. In NLZ vs Republic, Criminal Appeal No. 047 of 2024 the court stated that: “In order to establish the offence of incest, the prosecution must prove first, that the Assailant is a relative of the victim, second, that there was penetration of indecent Act and third, that there was positive identification of the perpetrator”. 30.On the first ingredient of relations, PW1 who is the mother of the minor and PW2 (minor) told court that the Appellant is the father to the minor. The Appellant himself did not dispute this. I find that it is not disputed that the Appellant herein is the father of the victim. 31.On the second ingredient of penetration, Section 2(1) of theSexual Offences Act defines penetration as: “The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 32.In the instant case PW1 and PW2 testified that the Appellant had sexual intercourse with the victim. PW1 found the Appellant on top on the victim and both the victim and the Appellant did not have any clothes from the waist downwards. PW2 confirmed to the court the the Appellant did bad manners to her. 33.According to the P3 form of the minor, produced in court, the minor had bruises on the labia majora with a white discharge. The hymen was intact. The fact that the labia majora had bruises is an indication of penetration. As earlier stated, Section 2(1) of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organ of another person. So that even partial insertion is penetration. 34.In Erick Onyango Ondeng’ v Republic [2014] eKLR the Court of Appeal had this to say about penetration: “….even partial penetration of the female genital by male genital will suffice to constitute the offence. And in Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal had this to say about penetration:-“Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface or inside, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ”. 35.My finding therefore is that the evidence by the minor, coupled by the testimony of the PW1 that she found the Appellant on top of the minor without his clothes from the waist and the medical evidence that the labia majora had bruises are all proof that there was partial penetration and therefore this ingredient has been proved. 36.On the issue of identification of the perpetrator, PW1 told court that the Appellant is her husband. PW2 confirmed that this was her father. Indeed, the Appellant has not denied this both at cross examination and in his defence. The court finds that this is sufficient evidence for identification/or recognition because the Appellant was known to the witnesses. 37.And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the ingredients of the offence of incest. Whether there were inconsistencies in the Prosecution evidence 38.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the prosecution evidence. I have not noted any contradiction in any of the prosecution evidence. 39.I find that the Appellant has not been able to demonstrate that there were inconsistencies on the prosecution case that affected the probative value of the evidence. Whether the trial magistrate erred in law and fact by failing to find that the Appellant had been denied his constitutional rights, to wit right to counsel and whether his rights were breached by the alleged delay in arraigning in to court. 40.The Appellant had submitted that he was not afforded representation at trial. I have perused the record and it is correct that the Appellant was not represented by counsel in the lower court. However, it is also correct that at no time did he ask for an opportunity to get himself a counsel. It was his responsibility to inform court that he needed counsel and the court would have afforded him the opportunity. 41.The Appellant also complains that he was remanded in custody for more than 24 hours before he was arraigned in court for plea and therefor submits that his constitutional rights were breached. My view on this submission is that the Appeal herein is against the conviction and sentence for the offence of Incest. If the Appellant is of the view that his rights were beached, then the proper way to enforce his right is by filing of a constitutional petition for the alleged breach of rights. For this court, it will restrict itself to the core issues that relate to the trial in the lower court, in respect of the offence of incest. Whether the sentence imposed was excessive 42.The penalty for the offence of Incest is set down in Section 20 (1) of the Sexual Offences Act. It provides that “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. 43.Section 20 (1) has a proviso 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. 44.In the instant case, the victim was a daughter to the Appellant and aged 10 years, meaning that the proviso to Section 20 (1) is applicable. The trial court noted the mitigation of the appellant and considered the same, noted the age of the victim and the responsibility of the Appellant as the father to the victim. That he was supposed to protect her but instead abused her and became a sex predator at his own home and proceeded to sentence him to life imprisonment. The trial court exercised its discretion in imposing the sentence. The sentence was appropriate in the circumstances. 45.In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” 46.I take cognisance of the discretion of the trial court and also the circumstances of the victim herein. The victim is a child aged 10 years and a daughter of the Appellant. The Appellant took advantage of the minor, who he should have been nurturing and protecting and molested her. He breached the trust the child had in him as the father. Considering this, the provisions of the law and the role of the trial court, this court will not interfere with the sentence imposed by the trial court. 47.In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld.It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBITHIS 3RD DAY OF JULY 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Leadsy – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent.