https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12949

SBZ v Republic (Criminal Appeal E104 of 2025) [2026] KEHC 12949 (KLR) (18 August 2026) (Judgment) Neutral citation: [2026] KEHC 12949 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E104 of 2025 FN Kyambia, J August 18, 2026 Between SBZ Appellant and Republic Respondent (Being an Appeal against the Judgment of Principal Magistrate’s Court at Kaloleni Hon. R. Amwayi Principal Magistrate in S.O No. E005 of 2025 delivered on 12th May, 2025) Judgment 1.The appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The appellant was tried and found guilty of the main charge of incest contrary to Section 20(1) of the Sexual Offences Act and sentenced to serve fifteen (15) years imprisonment. 2.The particulars of the main charge in which the appellant was adjudged guilty were that on diverse dates in the month of September, 2024 at [Particulars Withheld] sub-location, Kayafungo location, Kaloleni Sub County within Kilifi County being a male person caused his penis to penetrate the vagina of MP a girl aged 15 years. 3.The appellant was aggrieved by the conviction and sentence and lodged this appeal to the High Court. The appellant raised several grounds as contained in his petition of appeal and amended grounds of appeal contained in his submissions. The appellant abandoned the grounds raised in the petition of appeal and urged the court in his submissions to consider the grounds in the amended grounds of appeal to wit that the trial court erred in law facts when convicting the appellant without considering that the appellant’s rights to fair trial were violated as envisaged under Article 25(c), 49 (f) and 50(2)(h) of the Constitution. 4.The prosecution case was based on evidence of five (5) witnesses. Briefly, the prosecution case was that PW2 the complainant is step-sister to the appellant in that they share the same mother but a different father. At all material time the complainant and the appellant were staying with their grandfather PW4. During the material time PW4 went to Malindi for pastoral work. The complainant testified that during the period PW4 was away, the appellant had sex with her. PW4 saw blood stains on the mattress and sheets but when he asked the complainant she did not disclose. PW4 told her mother PW3. PW4 testified that after the complainant failed to disclose anything to him she became insecure and always wanted to accompany him. PW4 stated one day he heard her dream and shout the name of the appellant telling him to let her go. PW4 enquired to her what was the problem but she said nothing. PW4 testified that later it was revealed to him by God that there was something going on between the complainant and appellant. At this point he told PW3 to interrogate the complainant. When PW3 interrogated the complainant she told her that she has been having sexual intercourse with the appellant. 5.The matter was reported to the police and the appellant was arrested. The complainant was examined by PW1 who filled the P3 Form and PRC Form. On examination PW1 noted that the complainant had normal external genitalia with broken hymen and loose vaginal sphincter muscle. 6.PW5 investigated the case when it was reported to him. He narrated what the complainant told her. He later arrested that appellant and charged him. 7.When placed on his defence the appellant opted to give sworn statement. He said he was aged 21 years. He also confirmed that the complainant was his sister. He said in the month of September, 2024 he was left with the complainant at home as his grandfather PW4 had gone to Malindi. In the month of November, 2024, the complainant went to their mother’s place of work where she stayed up to January. On coming back, she did not talk to him. Later on, 7th January, 2025 he was arrested and taken to police station and interrogated. He denied the allegations levelled against him. 8.The trial court after evaluating the evidence adduced before her she appreciated that the burden of prove was on the prosecution to prove the charges against an accused person beyond reasonable doubt. She also found that all the ingredients of the offence of incest to wit, the complainant and the appellant were related, the complainant being step-sister to the appellant, that the complainant was penetrated and the appellant was positively identified as the perpetrator. The trial court found the offence of incest had been proved as required and convicted the appellant and sentenced him to serve fifteen (15) years. 9.As I have indicated, the appellant seems to have abandoned the grounds in the petition of appeal and dwelt on the ground accompanying his submissions which was basically that his rights to fair trial were violated. 10.What the appellant alleges constituted violation of his right to fair trial is that he was never given an opportunity to explain himself. He further alleges that he was held in custody beyond the 24 hours provided for under the Constitution. 11.The appellant further argued that the charges were framed against him by PW4 whom he states he found him with PW2 three times having sex whom when he questioned he framed these charges against him. 12.He further submitted that when he was arraigned in court he was not courageous enough to put questions to the witnesses and especially PW2 and PW4. The appellant urged the court to order for retrial. 13.The respondent submitted on the basis of the grounds contained in the petition of appeal filed by the appellant which he later abandoned. Indeed, I rebuttal to the respondent’s submissions, the appellant submitted that the respondent’s submission was contrary to his grievance before this court as the same addressed the grounds he had raised in the petition of appeal which he abandoned. He urged the court to rely on the ground raised in the submissions only and exclude the earlier grounds in the petition of appeal. 14.This being the first appeal to the High Court, and as expected of this court as laid down in the case of Okeno vs Republic (1972) E.A 32 I have examined the trial court record and re-evaluated the evidence adduced as mandated and drawn my own conclusions without overlooking the fact that I did not have the advantage of seeing or hearing the witnesses testify. 15.What emerges from the submissions by the appellant is that he was not accorded fair trial as he was totally confused when he was arraigned in court. All he is asking the court is to order a retrial. 16.I have no doubt that an appellate court can order a retrial. This can only be ordered when the interest of justice requires it. In most cases this can be ordered when the trial was legally defective or a fundamental mistake occurred to an extent that the right to fair trial has been infringed. This position was stated in the case of Ahmed Sumar vs Republic (1964) EALR 483 where the Court of Appeal stated:“… in general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for purposes enabling the prosecution to fill gaps in its evidence at the first trial; even where conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;…” 17.In the same breath, a retrial at the instance of the appellant as is the case herein will only be ordered where it can be shown that the original trial was illegal or defective. 18.In the instant case I have perused the trial court record and I find that the appellant was explained the substance of the charge. He pleaded not guilty to the same. He was duly supplied with all the pretrial material. He was given an opportunity to cross-examine the witnesses which he did. He was also given an opportunity to offer his defence where he gave a sworn statement. It is clear from the record the appellant was accorded fair trial. By asking for retrial, the appellant is seeking to fill the gaps which at this stage would be prejudicial to the respondent. 19.From the foregoing, there was nothing untold in the prosecution case so as to order for a retrial. On the same breath the sentence imposed by the trial court was lawful and I see no reason to interfere with the same. 20.The upshot is that the appeal herein lacks merit and the same is dismissed and the finding of the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF AUGUST, 2026.FRANCIS KYAMBIAJUDGE