https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6123

PNK v Republic (Criminal Appeal E009 of 2023) [2026] KEHC 6123 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 6123 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E009 of 2023 JM Chigiti, J May 6, 2026 Between PNK Appellant and Republic Respondent (Appeal against the conviction and sentence arising from the judgment of Hon. M. Kurumbu SRM in SO 64 of 2019 delivered on 9th July 2021 and sentenced on 3rd August 2021) Judgment 1.The accused was arrested on 14/9/2019 and arraigned in court on 16/9/2019. He was charged with incest contrary to section 20(1) of the Sexual Offences Act, Act No. 3 of 2006. The particulars were that the accused, on 7/9/2019 at [Particulars Withheld] of Gatanga sub-county within Murang'a county, being a male person, he caused his penis to penetrate the vagina of MW, a minor aged 11 years who to his knowledge is his daughter. 2.In the alternative, the accused was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences act No.3 of 2006. 3.The particulars of date, place and parties are similar to those in the main count. 4.The appellant is said to have intentionally touched the vagina of MW a child aged 12 years.The accused denied the charge and its alternative. 5.Five witnesses being PWI- MW (the complainant and daughter to the accused) PW2 - KK. (son to the accused, PW3 - Annette Njeri Muiruri (teacher at PW1 and PW2's school), PW4 - Anthony g. Muchina - a clinical officer from Ithanga Health Centre and PWS - P.C Peninah Njau No.23xxxx - the Investigating officer testified. 6.When the prosecution closed its case, the accused was placed on his defence. He gave an unsworn statement in his defence. 7.The court convicted the accused and sentenced him to life imprisonment through the judgment that was issued on the 9th July 2021. 8.Dissatisfied with the conviction and the sentence, he lodged the appeal that forms the subject of this judgment. 9.In the petition of appeal dated 26 January 2023 the Appellant prays for judgment that:a.The Appeal has merit and be allowed.b)The judgment and conviction entered by the learned magistrate be quashed.c)The sentence be set aside and the Appellant be released forthwith unless lawfully held. 10.The Appellant raised the following grounds of appeal:1.That the learned trial magistrate erred in law and in fact in failing to analyze issues that were brought out in evidence by the prosecution and or the circumstances that prevailed during the commission of the offence but instead of concentrated on extraneous issues and conjectures therefore arriving on a wrong decision of convicting the appellant on the offence of incest. PW1 and PW2 reiterated the accused used to come home drunk, find them sleeping on the floor and take her, thus then who used to cook for these children since even their grandfather chased them! PWl then further contradicts stating that the drunk Appellant would cook for them then wait for them to sleep.2.That the learned trial magistrate misapprehended the facts, applied wrong legal principles, and drew erroneous conclusion to the prejudice of the Appellant. The complainant was never threatened and does not state that she was threatened by the appellant neither did she scream.3.That the learned trial magistrate erred in law and in fact in convicting the Appellant on the face of material contradiction and inconsistency of the evidence by. the prosecution. The mother of PWI and PW2, who was told of the 1s time incest ordeal never testified and irrationally, negligently and deliberately left their home, leaving the minor in the unsafe hands of the alleged perpetrator.4.That the learned trial magistrate erred in law and in fact in failing to consider the Appellant's Defence against the prosecution-availed evidence. That there already existed a marital conflict between PW3's brother and the accused.5.That the learned trial magistrate erred in law and in fact in giving a sentencing too severe by awarding the mandatory life sentence. 11.It is the Applicant’s case that the trial magistrate fell into error, in holding that the prosecution had proved the offense beyond a reasonable doubt. 12.The Appellant also challenges the fact that the trial magistrate failed to consider the material facts and evidence that he had raised in his defense simply because he gave an unsworn statement. 13.He argues that their trial magistrate failed to consider his state of mind and the fact that there was bad blood between him and his wife who is now married to PW3’s brother. 14.He argues that the trail Magistrate failed to consider his mitigation before sentencing him. 15.He also argues that the trial Magistrate meted out an excessive sentence on him. The Respondents Case; 16.On its part, the Respondent submits that the trial magistrate did not fall into error. 17.It is the respondent’s case that the trial magistrate was faced with acase where the appellant gave an unsworn statement which was not tested through cross examination, and the issue of the appellant’s mental state did not arise. 18.The issue of the bad blood with his wife and the intoxication issues could not be tried through cross examination in the circumstances. 19.It is the respondent case that the trial magistrate considered all the factor that one necessary before arriving at this sentence term. 20.It is further, the respondent’s case that in exercising its sentencing discretion, the court was guided by the pre-sentence report and the factors surrounding the case, including the age of the victim, and the fact that the offense had been committed repeatedly. Analysis and determination; 21.This being a first appeal, the duty of the court was well stated in Okeno v Republic [19721 EA 32 thus:"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [19581 E.A 424. " 22.The appellant was charged Under section 20 of the Sexual Offenses Act under which Magistrate had the discretion to determine the sentence that she would mete out on an accused person. 23.The appellant was convicted after the trial where in the prosecution called in witnesses. The accused person was given an opportunity to cross examine the witnesses which he did. 24.The accused person was given an opportunity to call witnesses. He elected to give an unsworn statement in evidence. 25.The court has to look at the weight that is given to unsworn evidence. 26.Unsworn evidence ordinarily will not be subjected to cross examination as a result of which the veracity and the weight of the evidence that is given by way of a statement or evidence in this form is not as high as that of unsworn evidence. 27.In this case the Court decided that the unsworn evidence was not of any probative value. The court finds no mistake or error in law in that holding. 28.Given that the appellant gave an unsworn statement, then it becomes next to impossible to test the issue of intoxication as a defense. This defense would have been best tested through cross examination. 29.As a result of failure to give sworn evidence the appellant knowingly opted to give his evidence the way he did and he cannot blame the trial magistrate. 30.There was no way he was going to give evidence that was going to persuade the court to believe that he acted out of intoxication through unsworn evidence and I so hold. 31.The argument that there was bad blood between his wife and PW 3s falls by the wayside as a result of the fact that he tendered unsworn evidence just like in the case of intoxication. 32.In Amber May vs The Republic [1999] KLR 38, the High Court held that unsworn statement has no probative value notwithstanding the provisions Section 211(1) of the Criminal Procedure Code. On Appeal against that decision and reported as May vs The Republic [1981] KLR. 129, the court of Appeal inter alia held;-1.That unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.2.No adverse inference can be drawn against the appellant for electing to make an unsworn statement as she was exercising her right conferred by Section 211 (1) of the Criminal Procedure Code (Cap 75, Laws of Kenya).” 33.The court finds no fault in the way the court handled their two issues and I so hold. 34.The appellant also argues that the court failed to consider his mitigation. 35.I have keenly looked at the proceedings of 9.7.21 from where it is clear that the appellant was given an opportunity to mitigate. He embraced the slot and proceeded to mitigate. 36.After the prosecutor informed the court that the appellant has no previous records, the accused in mitigation stated that “I do casual jobs to support my elderly parents. My mother is bedridden. That is all.” 37.A Presentencing report was produced on 8.3.21 after which the appellant was sentenced to serve life imprisonment. 38.I am satisfied that the trial court paid attention and considered the appellant's mitigation and the pre-sentencing report while exercising her discretion in sentencing the appellant to serve for life. 39.On the term of the sentence, the court is satisfied with the sentence given. The same is within the law.Order;The appeal lacks merit and it is dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY AT ITEN THIS 6TH DAY OF MAY 2026...........................J. CHIGITI (SC)JUDGE