https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8546

Ombura v Republic (Criminal Appeal E135 of 2025) [2026] KEHC 8546 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8546 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E135 of 2025 DR Kavedza, J June 18, 2026 Between Naftal Ochieng Ombura Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. Kahuya I.M (SPM) on 11TH September 2025 delivered in Chief Magistrates' Court (Kibera) S.O. Case No. E017 of 2025 Republic vs Naftal Ochieng Ombura) Judgment 1.The Appellant was charged and after full trial convicted by the Subordinate Court of the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty-five (25) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court, and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyze and re-evaluate the evidence that was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court, but bearing in mind that it never saw the witnesses testify. 4.The prosecution called a total of five (5) witnesses in support of their case. PW1 (L.A.), the complainant, testified that at the material time she resided with the appellant, her uncle and cousin. On occasion they shared a bed; at other times she slept on the couch. She stated that on one night, while all were asleep on the bed, she woke up and found the appellant on top of her. He was inserting his penis into her vagina. The following night, despite her sleeping on the couch, the appellant insisted she return to the bed and had sexual intercourse with her for a second time. On the third occasion, while she was on the couch, the appellant instructed her to remove her clothing. He confessed his attraction to her and his desire to have sex again. She was unable to resist. He informed her it would be the last time and warned her not to disclose the incidents. 5.Thereafter, they travelled upcountry, where the appellant attempted a fourth act of sexual intercourse, which she refused. She informed him that her menstrual periods were delayed by two months. Upon resuming school, she inquired of her teacher whether a missed period was normal. Advised that it was not, she a visited a chemist with a friend and tested positive for pregnancy. The matter was reported to Dreams Community Based Organisation, then to Riruta Police Station, and subsequently to Nairobi Women’s Hospital for treatment, with the complainant placed in a Children’s Home. 6.In cross-examination, PW1 confirmed certainty regarding the third incident of defilement because the lights were on, though she was less certain about the first two. She denied the appellant’s allegations of her immorality. In re-examination, she reiterated certainty as to the third incident and stated she had not engaged in sexual intercourse prior to these events. 7.PW2, John Njuguna, a clinician at Nairobi Women’s Hospital, produced the medical report. Examination revealed the complainant was calm with no visible physical injuries. The hymen was torn at the 6 o’clock position and had healed. She was pregnant, having been impregnated by her uncle. In cross-examination, he noted that the documents did not record the gestation period and that the late presentation meant some evidence had faded. 8.PW3, Martin Wendo, a psychologist, testified that on 21st January 2024 he provided counselling to L.A. for sexual violence suffered over two months at the hands of the appellant. In cross-examination, he confirmed referral by colleague Valerie on 20th January 2024 and prior engagement with L.A. through a programme. 9.PW4, PC Omuse, the investigating officer at Riruta Police Station, testified that on 30th January 2024 she received the defilement complaint from PW3 and PW1. Arrangements were to be made for DNA testing to establish parentage. 10.PW5, Pamella Okello, a government analyst, produced the DNA report. Analysis of samples from L.A., the child, and the appellant established a 99.99% probability that the appellant is the biological father of the complainant’s child. 11.In his defence, the appellant testified that the present case was fabricated by the Dream Team personnel because they had illegally obtained his consent to register L.A in their programme for financial gain. He told the court that the complainant spent the night outside his house and upon inquiry he found out she spend the night in a man’s house and he confronted and she apologised. He admitted that although the DNA report showed that he was the biological father to PW1’s child but he argued that the report captured the wrong victim’s name. 12.After a full trial, the appellant was convicted and sentenced accordingly. 13.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 14.Section 20 of the Sexual Offences Act deals with incest by males. It provides as follows:“incest by male persons20.(1)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.(2)If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years.(3)Upon conviction in any court of any male person for an offence under this section, or of an attempt to commit such an offence, it shall be within the power of the court to issue orders referred to as “section 114 orders” under the Children’s Act and in addition divest the offender of all authority over such female, remove the offender from such guardianship and in such case to appoint any person or persons to be the guardian or guardians of any such female during her minority or less period.” 15.The primary issue for determination is the relationship between the victim, L.A, and the appellant, and whether he was positively identified as the perpetrator. She testified that the appellant is her uncle, a fact which was not disputed by the appellant. The complainant’s testimony provided a vivid and consistent account of the incidents, detailing the appellant’s threats and actions. Although the incidents occurred at night, the appellant’s identity was unmistakable to the complainant, given their familial relationship. 16.Regarding the victim’s age, the complainant testified she was 14 at the material time. PW4 produced her birth certificate, confirming her birth establishing her as a child during the commission of the offences. 17.Having established the appellant’s identity, the element of penetration against the complainant who was his niece and the minor’s age, this court finds that the prosecution proved its case beyond reasonable doubt. The trial court’s conviction was proper and is upheld. 18.Accordingly, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026..................................D. KAVEDZAJUDGEIn the presence of: