https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11884

PMN v Republic (Criminal Appeal E064 of 2024) [2026] KEHC 11884 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11884 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E064 of 2024 SC Chirchir, J July 23, 2026 Between PMN Appellant and Republic Respondent (Being an appeal from the Judgment of Hon. E. Wambugu (SRM) in Kandara Criminal Case No. SO 45 of 2021 delivered on 26th day of September, 2023) Judgment 1.The Appellant was charged with the offence of Incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006. (The Act). The particulars of the charge were that on 9th May 2021 at [Particulars withheld] Village in Particulars withheld] Sub-County within Murang’a County, he intentionally caused his penis to penetrate the vagina of IWN, a child aged 10 years who was to his knowledge his niece. 2.He faced an alternative charge of Committing an indecent act with a child, contrary to section 11(1) of the Act. 3.He was found guilty of the main charge and sentenced to life imprisonment. 4.The Appellant was aggrieved by the conviction and sentence and preferred this appeal. 5.In the filed Petition dated 10th September 2024, which he later amended he has set out the following grounds:a).That the trial magistrate erred in law and fact by failing to find that the elements of the offence were not conclusively proved to warrant a conviction.b).That the learned trial magistrate erred in law and fact in relying on the evidence of PW 1 whose evidence was benign of believe as the voire dire conducted was unprocedural hence the conviction was not safe.c).That the learned trial magistrate is faulted for failing to consider the appellant’s defense which was worth of believe. The Prosecution Case 6.PW1, the complainant herein told the court that on 9th May 2021, at around 11.00 a.m., she was returning from church and she headed to the market to buy vegetables. She was in the company of her cousin, Ann. She testified that the Appellant, whom she identified as her uncle, called out to her. Upon her inquiry as to what the problem was, he took her to a house and the door was closed behind them. The Appellant removed her dress and her undergarment and proceeded to insert his penis into her vagina. She told the court that she felt pain and that the Appellant warned her not to tell anyone about the incident. Her mother eventually arrived at the scene and screamed. The incident was reported to the police. She was later taken to Kandara Hospital and Kabati Police Station. She positively identified the Appellant in the dock. 7.On cross-examination, she stated that she had been with another boy and confirmed that there was a fence between her home and that of the Appellant. In re-examination, she reiterated that they indeed share a fence. 8.PW2, was the complainant’s mother. She told the court that on 9th May 2021, the complainant, had been sent to the market to buy vegetables. She was accompanied by a boy who was her cousin. she later went outside the gate to inquire from the boy regarding the complainant's whereabouts, but he could not say where she was. PW2 then opened a door and witnessed the Appellant’s penis. She noted that, at that moment, the child was in her clothes. Upon seeing this, the witness screamed, which caused the Appellant to run out of the house. The girl got out and they subsequently reported the incident at Kabati Police Station. She stated that the complainant was 10 years old, having been born on 11th September 2010. She produced PW1 birth certificate as an exhibit. She identified the Appellant on the dock as the perpetrator. 9.PW3, was the brother to the complainant. He testified that on 9th May 2021, he was at home taking a bath when he heard some noise. Upon checking the source of the disturbance, he discovered it was his mother who was screaming. He then saw the Appellant running shirtless at the time. He further recounted that his sister ran away and they went to look for her, after which they proceeded to the police station. 10.PW4 was Rosemary Makena, an officer attached to Kabati Police Station. She told the court that on 9th May 2021, she attended to the child in her office who was accompanied by her mother and another child. The mother reported that her child had been defiled. She escorted her to hospital and later issued a P3 form.The child told her she had been defiled on a sofa set . She produced the child’s birth certificate as Exhibit 4 and identified the Appellant at the dock. She stated that the incident took place at the Appellant’s grandfather’s house after the child had been called in, while on her way to the market. 11.PW5 was a registered clinical officer attached to Kandara Sub-County Hospital. She examined the complainant on 10th May 2021. She estimated the child’s age at 10 years. On examination she found that her hymen was recently broken and there was the presence of dirt and a whitish discharge. Further clinical tests revealed that the complainant had contracted an infection, for which she was placed on medication. Based on these clinical findings, the witness concluded that there had been partial penetration, She produced the P3 form, PRC form, and treatment notes. The Defence Case 12.The Appellant testified that on Sunday, 9th May 2021, he encountered the complainant, whom he described as his neighbor. According to the witness, he arrested her after discovering that she had come to steal his father’s money. He recounted that the child passed under a granary and damaged a wire in the process. He maintained that at the material time, he was at home and was engaged in cleaning his clothes. Under cross-examination, the Appellant confirmed that he and the complainant have never had any differences and acknowledged that the child had no reason to be before the court. 13.The Appeal was heard by way of Written Submissions. Appellant’s Submissions 14.The Appellant vide his submissions dated 24th November, 2025, challenged the safety of his conviction on several fronts. He contended that the prosecution failed to meet the requisite standard of proof beyond reasonable doubt. Relying on the authority of Fappyton Mutuku Ngui Vs Republic Cr. Appeal 296 of 2010, the Appellant submits that for a conviction to stand, the prosecution must conclusively prove three essential pillars: penetration of the victim's genital organ, the age of the victim at the material time, and the identification of the accused to the exclusion of all others. 15.On the issue of penetration, the Appellant argues that the evidence was contradictory. He points out that while PW2, the mother, claimed to have seen the Appellant's penis, she also noted the minor had clothes, which he suggests indicates nothing happened. 16.Further, he faults the reliance on medical testimony, citing S v Nzvenga (56 of 2021) for the proposition that medical evidence must be thorough and conclusive. He further relies on Dhalay V. Republic (1997) KLR to submit that the opinions of experts are not binding and must be considered alongside all other available evidence. He cites the decision in Omari Ismael Mazzha V Republic (2017) eKLR, to argue that where medical evidence is glaringly contradictory, as he alleges it was here regarding "partial penetration," the element of penetration cannot be said to be sufficiently proved. 17.It is the Appellant’s submissions that the voire dire examination was a mere academic exercise that failed to probe the child's understanding of telling the truth or the consequences of lying. Consequently, he invites the court to find, as in JM v Republic KEHC 4859 (KLR), that the failure to conduct a proper voire dire is a fatal irregularity that renders the resulting testimony inadmissible and the conviction unsafe. 18.Finally, the Appellant faults the trial court for failing to give due consideration to his defense. He invokes Article 50 of the Constitution of Kenya, 2010, and Sections 107 and 109 of the Evidence Act to reiterate that the burden of proof remains squarely with the prosecution. Respondent’s Submissions 19.On the issue of the age of the victim, the Respondent submits that the same was conclusively established through multiple streams of evidence. The Respondent points to the sworn testimony of PW1, who stated she was 10 years old and the evidence of her mother (PW2), who provided her date of birth as 11th September 2010. Furthermore, the Respondent relies on the birth certificate produced as Exhibit 3 and relies on the Authority of Edwin Nyambogo Onsongo (2016) eKLR, which affirms that age can be proved through a combination of documentary evidence, oral testimony from the child if they are sufficiently intelligent, or evidence from guardians and medical experts. 20.Regarding the element of penetration, the Respondent maintains that the testimony of the minor (PW1) was categorical and was further corroborated by both eyewitness and medical evidence. The Respondent cites the medical findings of PW5 which included the recently broken hymen, the presence of a whitish discharge and a subsequent infection. It is the Respondent’s contention that the minor’s evidence remained unshaken during cross-examination and that the Appellant did not effectively challenge the doctor’s medical findings. 21.On the question of identification, the Respondent submits that this was a case of positive recognition, as the Appellant was the victim’s uncle and a known neighbor, a fact the Appellant himself acknowledged in his defense. 22.The Respondent further addresses the legal requirements for the offence of incest under Section 20 (1) and Section 22 (3) of the Act. It submits that the relationship between the parties falls squarely within the prohibited degrees defined by the Act and that, pursuant to Section 22 (3), an accused person is presumed to have knowledge of such a relationship unless the contrary is proved. 23.The Respondent further submits that there were no material inconsistencies or contradictions in the prosecution's case. 24.On the sentence, it is submitted that life imprisonment was not only lawful but was the mandatory minimum sentence prescribed by the Act for the offence of incest involving a minor, irrespective of the perpetrator's status as a first offender. Analysis and Determination 25.This being a first appeal, this court has the duty to review the evidence, carry out its own evaluation, and arrive at its own conclusion, while making due allowance for the fact that the trial court observed the witnesses first-hand (see Kiilu vs Republic (2005) 1 KLR 174). 26.I have considered the record of the trial court, the grounds of appeal and the rival submissions, and identified the following issues as requiring determination:a.Whether the voire dire examination was properly conducted.b.Whether the elements of the offence were proved beyond reasonable doubt.c).Whether the Appellant’s defence was properly considered. Whether the voire dire examination was properly conducted 27.The complainant was ten years old when she testified and was therefore a child of tender years for purposes of section 19 of the Oaths and Statutory Declarations Act (Cap. 15 Laws of Kenya) Section 19(1) requires the trial court, before receiving the evidence of such a child, to satisfy itself whether the child understands the nature of an oath and, if not, whether the child possesses sufficient intelligence to justify receiving her evidence and understands the duty of speaking the truth. 28.The purpose of the inquiry is to establish the child’s competence and whether her evidence should be received on oath or otherwise. 29.The Appellant has complaint that the inquiry in this case was perfunctory and did not sufficiently test the complainant’s appreciation of the nature of an oath or the consequences of lying. 30.In the present case, PW1 gave a coherent account of how the Appellant called her into the house, removed her dress and undergarment, penetrated her and warned her not to disclose the incident. She was cross-examined by the Appellant and maintained her account. More importantly, her testimony did not stand alone. PW2 arrived at the scene, saw the Appellant’s exposed penis and screamed, whereupon he fled. PW3 shortly thereafter saw the Appellant running away shirtless. PW5’s examination on the following day disclosed a recently broken hymen, whitish discharge and infection and led her to conclude that there had been partial penetration. 31.Accordingly, even if the recorded inquiry did not exhaust every desirable question, no miscarriage of justice resulted. PW1’s evidence was received, tested in cross-examination and materially corroborated. 32.Nonetheless, the consequence of an inadequate or omitted voire dire examination is not invariably the nullification of the trial. In Maripett Loonkomok v Republic [2016] KECA 520 (KLR),the Court of Appeal held that failure to conduct the inquiry, or to conduct it properly, does not in every case vitiate the proceedings; the appellate court must consider the quality of the child’s evidence, whether it was tested by cross-examination, and whether there is other material evidence supporting it. The complaint concerning voire dire therefore does not render the conviction unsafe. Whether the elements of incest were proved beyond reasonable doubt 33.Section 20(1) of the Sexual Offences Act provides, in material part, that a male person who commits an act which causes penetration with a female person who is, to his knowledge, his daughter, granddaughter, sister, mother, niece, aunt or grandmother commits the offence of incest. Where the female person is under eighteen years and that fact is alleged and proved, the offender is liable to imprisonment for life. The prosecution was therefore required to prove the complainant’s age; penetration; the Appellant’s identity as the perpetrator; and the prohibited relationship together with his knowledge of it. 34.As regards age, PW1 stated that she was ten years old. PW2 gave her date of birth as 11th September 2010 and produced her birth certificate. The offence occurred on 9th May 2021. That evidence established beyond reasonable doubt that PW1 was below 18 years. 35.Penetration is defined in section 2 of the Act as “the partial or complete insertion of the genital organs of one person into the genital organs of another.” Complete penetration or presence of spermatozoa is not required. PW1 expressly testified that the Appellant inserted his penis into her vagina and caused her pain,and PW5’s clinical findings indicated a recently broken hymen, discharge and infection. PW5’s opinion that the findings were consistent with partial penetration was not displaced in cross-examination. 36.The fact that PW2 stated that the complainant was in her clothes when she entered the house does not negate penetration. PW2 arrived after the act described by PW1 and did not purport to have witnessed its entire course. Her observation of clothing concerns the state in which she found the child; it is not inconsistent with PW1 having been undressed and dressed again, wholly or partly, before PW2 entered. In any event, the statutory definition is satisfied by the slightest insertion and does not depend on the condition of the victim’s clothing when a third party arrives. 37.I have also considered the discrepancies identified by the Appellant. Minor differences as to peripheral details are to be expected where witnesses recount a sudden event from different vantage points. The governing question is whether the inconsistencies go to the root of the charge or create a reasonable doubt. As stated in Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, [2003] UGCA 6, a decision repeatedly applied by Kenyan courts, only grave contradictions that cause the court to doubt the truthfulness of witnesses will justify rejection of their evidence. The evidence in this case remained consistent on the central facts, namely: PW1 entered the house with the Appellant, PW2 interrupted them, the Appellant fled, and the medical examination disclosed recent genital injury consistent with partial penetration. The differences cited by the Appellant are not material therefore. 38.Identification was by recognition rather than by identification of a stranger. PW1 knew the Appellant as her uncle and pointed him out in court. The offence occurred at about 11.00 a.m. inside an immediate neighbouring homestead, and PW2 also knew and identified him. The Appellant admitted knowing PW1 and admitted having encountered her that day. The circumstances excluded any reasonable possibility of mistaken identity. Recognition is ordinarily more reliable than identification of a stranger, although it must still be tested with care (see: Anjononi & others v Republic [1980] KLR 59). Having undertaken that scrutiny, I am satisfied that the Appellant was positively identified. 39.On relationship, PW1 identified the Appellant as her uncle and the charge specified that she was his niece. That was direct evidence of a relationship falling within section 20(1). The parties were known to each other and lived in adjoining homesteads separated by a common fence. The relationship was not shaken in cross-examination, nor did the Appellant place before the trial court any credible evidence showing that PW1 was not his niece. Once the prohibited relationship was proved, section 22(3) of the Sexual Offences Act raised a rebuttable presumption that the Appellant knew of it. The presumption was not displaced. 40.Upon re- evaluation of the evidence am satisfied that the offence of incest was proved. Whether the Appellant’s defence was properly considered 41.The Appellant stated that he found PW1 stealing his father’s money and arrested her, and that she had damaged a wire beneath a granary. That account did not explain PW2’s evidence that she found him with his penis exposed, his immediate flight from the house, PW3’s evidence that he was running away shirtless, or the fresh genital findings recorded by PW5 on the following day. It was also significant that the Appellant accepted in cross-examination that he had no prior disagreement with PW1 and could identify no reason why she would falsely accuse him of so grave an offence. 42.What is required of the defence is only to raise a reasonable doubt. Having independently weighed it, I find that the allegation of theft was an afterthought and did not create such doubt. The prosecution evidence remained cogent and mutually corroborative and the trial court was entitled to reject the defence. Sentence 43.The complainant’s age was pleaded and proved. The proviso to section 20(1) of the Sexual Offences Act therefore rendered the Appellant liable to imprisonment for life. In DMM v Republic [2025] KECA 1525 (KLR), the Court of Appeal considered section 20(1) and upheld life imprisonment for incest involving a child. The above decision is binding on this court, in any event, and consequently the sentence is affirmed. 44.In conclusion, the entire Appeal fails. The findings of the trial court both on conviction and sentence are hereby upheld. DATED, SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS, THIS 23RD DAY OF JULY 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo- Court AssistantMr. Majale for the Respondent.