https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11489

Republic v AT (Criminal Appeal E028 of 2024) [2026] KEHC 11489 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11489 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E028 of 2024 JN Njagi, J July 24, 2026 Between Republic Appellant and AT Respondent (Being an appeal from the original conviction and sentence by Hon.E.K.Usui, Chief Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No. E057 of 2023 delivered on 28/3/2023) Judgment 1.The Respondent herein was facing a charge of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates of 30th October and 1st November 2022 at (name withheld) in Malindi sub-county within Kilifi county he intentionally and unlawfully caused his penis to penetrate into the anus of SA (herein referred to as the victim), a boy aged 3 years, who was to his knowledge his son. 2.Upon hearing the evidence from the prosecution witnesses, the trial magistrate found that the prosecution had not established a prima facie case against the Respondent as o warrant him being placed to his defence. The court acquitted him under section 210 of the Criminal Procedure Code. The prosecution was aggrieved by the acquittal and lodged the present appeal. 3.The grounds of appeal are that:1.That in making the impugned decision the learned trial magistrate erred in fact and law when he held that the evidence by the prosecution failed to demonstrate a prima facie case against the Respondent while it is clear from the evidence on record that the Respondent indeed penetrated the anus of the victim, a child aged 3 years with his penis.2.That the trial magistrate erred in fact and in law by failing to appreciate that the threshold for a prima facie case had been met and demonstrated by the Appellant as the evidence on record is clearly sufficient on its own for the court to return a guilty verdict in absence of a rebuttal by the Respondent, as held in Ronald Nyaga Kiura v Republic (2018) eKLR at para 22 and in Republic v Alex Musau Jimmy (2022) eKLR at paras 5 and 13.3.That the learned Magistrate erred in law and in fact by disregarding the evidence of PW1(victim), PW2(FSS), and PW3 (medical officer) that were uncontroverted, consistent and corroborative to proof the case against the Respondent.4.That the learned trial magistrate erred in law and in fact by failing to appreciate that the evidence provided by PW1, PW2 and PW3 were uncontroverted by the defence and that consequently the accused (Respondent) ought to have been put on his defence.5.That the learned trial magistrate erred in fact and in law by making an unfounded assumption that the victim may have been coached according to a video recording by PW2 placed before court, despite the trial court having observed in its ruling that the same was in Arabic and no transcript had been provided to court.6.That the learned Magistrate erred in law and fact by failing to make a finding that Appellant has established a prima facie case against the Respondent and that the Respondent ought to have been put on his defence.7.That the decision of the learned trial magistrate together with the consequential orders are bad in law and should not be allowed to stand. Case for prosecution 4.The case for the prosecution was that the victim herein was at the material time aged 3 years. His speech had not fully developed and was learning to talk. He was living with his mother PW2. 5.When he appeared in court, the court ordered that he gives unsworn evidence. He stated in a brief statement in Arabic language as follows:“……my father did here (points at his buttocks and touches). It was at home. My father was at home. My father did “pupu” touches again. I felt pain. I cried”. 6.The mother to the victim told the court that the Respondent was her former husband with whom he had separated in August 2022. He was the father to the victim. 7.That on 31st Mach 2021 the Respondent picked the victim from her home for visitation. He stayed with the victim for 2 days and she went to pick him on 1st November 2022. That on getting home the boy removed his panties to go to the toilet. He then started to cry and when she asked him what the problem was, he said that he was feeling pain in his pupu, pointing to the anus. She checked his anus and found scratches around the anus. She asked him what had happened and he said that papa had heart him in the pupu. She was traumatized and she did not take any action. That in December she recorded the child in a video clip explaining what the father did to him. Later in the month of April 2023 the respondent served her with papers from the children office in which he was complaining that she had denied him access to the child. She went to the said office and explained the reason he had died him access to the child. She was advised to report the matter to the police. She did so. The boy was taken to hospital on 8/5/2023. 8.A doctor at Malindi sub county hospital PW3 testified that he attended to the victim on 5/5/2023 and examined his anal orifice and found him with scarring on the anal region. Other tests were done and they were found normal. His P3 form was completed by Dr. Ibrahim on 8/5/2023. He formed the opinion that there was possibility of sodomy having been committed. 9.The case was investigated by Cpl Marian Hussein PW4 of Malindi police station. It was her evidence that the case was reported at the police station by the victim`s mother in the company of the victim on 5/5/2023. He sent them to hospital and issued them with a P3 form. She obtained the birth notification card of the victim. She summoned the Respondent to the police station who went there in the company of his counsel. He charged him with the offence. 10.During the hearing of the case in court the doctor, PW3 produced the treatment notes, the P3 form and the lab request report as exhibits, P.Exh.1-3 respectively. The investigating officer produced the birth notification card as exhibit, P.Exh.4. The mother to the victim played the video taken in December 2022 where the victim was explaining what the respondent did to him. She produced a certificate of electronic evidence as exhibit. Reasons for acquittal 11.The trial court in acquitting the Respondent stated that the child was of tender years. That the child in his evidence stated that his father touched his buttocks. That the mother said that she had recorded the child in a video clip saying that his father inserted his penis in his anus. That he spoke Arabic in the video and no translation was provided. That the court observed in the video that the mother was leading him to say the word pupu. 12.The court noted that the mother to the victim did not report the matter to the police until after 6 months but even then this was prompted by a report by the respondent to the children office that she had denied him access to the child. The court wondered whether the evidence was not fabricated so as to deny the appellant access to the child. 13.The court found the evidence of the child to have been couched and was not telling the truth. 14.The appeal was disposed of by way of written submissions. Appellant`s submissions 15.The Appellant submitted that the evidence of the victim and his mother established that the prosecution had made out a strong case against the respondent. That the medical evidence supported the evidence of the victim on penetration into the anus. That the prosecution evidence was uncotroverted and consistent. That the same was sufficient to have the Respondent placed to his defence. 16.It was submitted that the conclusion by the trial court that the charges were fabricated is out of conjecture and is not supported by evidence. 17.The Appellant urged the court to find that a prima facie case was established against the Respondent and should proceed to place him to his defence. Respondent`s submissions 18.The Respondent submitted that under the provisions of section 20(1) of the Sexual Offences Act a male person cannot be charged with committing the offence of incest to a male person. That the offence as established in the section can only be committed to a female person by a male person. Reliance was placed in the case of JKM v Republic [2020] KEHC 3953 (KLR) where the court held that:The complainant was a male person and did not fall within the category listed in section 20(1) of the Act. Under section 20(1), a male person committed incest with a female relative. There was no provision in the Act where a male person was deemed to commit incest with a male relative. An offence of incest had therefore not been disclosed, as no such offence existed under section 20(1). The trial court committed a serious error in convicting and sentencing the appellant under section 20(1) of the Sexual Offences Act. 19.It was submitted that the charge was fatally defective since it charged the respondent with an offence that does not exist in law. Reliance was placed in the case of Mokera v Republic (2023) KEHC 22910 (28 September 2023) (Judgment) where it was stated that:“It is trite that an accused person should be charged with an offence that is known in law. A charge should also specify or spell out all the relevant information in such a manner that would enable an accused person put up an appropriate defence. This principle is premised on Section 134 of the Criminal Procedure Code which stipulates the manner in which a charge should drafted as follows: -“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 20.It was submitted that the trial was a nullity and that being so there was no need to analyze the evidence. That there would be no need for a retrial as there was no offence committed in the first place. Analysis and determination 21.I have considered the grounds of appeal and the submissions tendered in the case. I have also given due consideration to the reasons given by the trial court in finding that the respondent had no case to answer. The question is whether the trial court erred in making a finding that the respondent had no case to answer. 22.In the Black’s Law Dictionary, 10th Edition prima facie case is defined as follows:Prima facie case. (1805)I.The establishment of a legally required rebuttable presumption.2.A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor 23.The Court of Appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined prima facie case as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 24.The appellant submitted that the charge was defective as there is no offence of incest established under section 20(1) of the sexual Offences Act where a male person can be charged with defiling a male relative. The section provides as follows:“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 provided 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.” 25.The elements of the offence of incest under the above are that there must be:1.An indecent act or an act that causes penetration;2.The victim must be a female person who is related to the perpetrator in the degrees set out in section 22 of the Act.3.The perpetrator must be a male person. 26.It is then clear that there is no offence of incest under the section of a male person defiling a male relative. Such an offence does not exist under the Sexual Offences Act. The Respondent was therefore charged with a non-existent offence. The charge was therefore fatally defective. 27.However, the respondent was facing an alternative charge of committing an indecent act with a child of which there was no defect. The appellant was not entitled to an automatic acquittal as he could be placed to his defence for the alternative charge if there was evidence to sustain the charge. I will therefore consider whether there was evidence to sustain the alternative charge of committing an indecent act with a child. 28.The victim in this case was a child of tender years whose speech had not fully developed. He gave unsworn evidence and said that his father touched his pupu (demonstrated by touching his buttocks) and he felt pain. Nowhere in the evidence did the child say that the respondent inserted his penis into his anus or that he touched his anus using his penis. There was no explanation as to what the word pupu meant – did it refer to buttocks or anus? 29.It is also to be noted that the victim was not taken to hospital immediately the child revealed the information to the mother. It is not until after 6 months that the mother to the victim took the complaint to the police which was after the respondent filed a case with the children department for denial of child visitation. This means that had the respondent not filed the said complaint, the mother to the victim would not have lodged her complaint with the police. This creates doubt on her credibility as a witness. 30.The doctor who examined the victim found him with scarring marks on the anal orifice. Since the victim never adduced evidence that the respondent inserted anything into his anus, there was no evidence to connect the respondent with the scarring marks. More so it was not proved what caused the scaring marks on the anal orifice of the child in face of the evidence of the doctor that scratches could not cause the scarring marks. 31.Besides the foregoing, I have noted from the court record that the court allowed the victim to give unsworn evidence in court before conducting a voire dire examination on him. He was not even subjected to cross -examination after giving evidence. 32.Section 19 provides the purposes of voire dire is to ascertain whether a witness is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. This was explained by the Court of Appeal in Johnson Muiruri vs Republic [1983] KLR 445 as follows:“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him…..A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth….The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.” 33.However, failure to conduct a voir dire examination on a witness does not vitiate the trial. The Court of Appeal in Maripett Loonkomok v Republic [2015] eKLR, stated the following on the issue :…..voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”. 34.The law is therefore that in situations where voir dire examination is not conducted, the court cannot convict on the mere evidence of the child of tender years unless there is independent evidence to support the charge. There was no such evidence in the case against the Respondent. The respondent even if placed to his defence could not be convicted of the offence in the absence of independent evidence. 35.In view of the foregoing, I find that there was no sufficient evidence to put the respondent to his defence on the alternative charge of committing an indecent act to a child. Placing him to his defence in face of the kind of evidence adduced before the court would be asking him to fill in the gaps left behind by the prosecution. 36.For the reasons given above, I find that the trial court was not in error in holding that the respondent did not have a case to answer. 37.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 24TH DAY OF JULY 2026J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for AppellantMr. Fondo for RespondentRespondent – present virtuallyCourt Assistant – Rahma