https://new.kenyalaw.org/akn/ke/judgment/keca/2026/921

SJS v Republic (Criminal Appeal E003 of 2024) [2026] KECA 921 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 921 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E003 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between SJS Appellant and Republic Respondent (Being an appeal from the Judgment and Orders of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2023 in Criminal Appeal No. 74 of 2018) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2023, and in which the learned Judge upheld the appellant’s conviction by the Principal Magistrate’s Court at Garsen (E. Kadima, RM) in Criminal Case No. 7 of 2018. 2.The genesis of the appeal before us is that the Appellant, SJS , was charged with incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 (the Act). The particulars of the offence were that, between the 1st day of March 2018 and the 23rd day of May 2018 at (Partculars withheld)Village in (Partculars withheld) Sub-County within Tana River County in the Coastal Region, he unlawfully and intentionally caused his penis to penetrate the vagina of WR, a girl who was, to his knowledge, his daughter. 3.In addition to the offence aforesaid, the appellant was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Act, the particulars being that, between the dates and at the place aforesaid, he unlawfully and intentionally touched the vagina of WR, a girl aged 6 years with his penis. 4.The appellant pleaded not guilty to the charges, whereupon the case proceeded to hearing. The prosecution called six (6) witnesses, including the complainant, WR, who testified as PW1. 5.The visibly distraught PW1 gave a sworn statement after a voire dire examination and testified that she was a pupil at (Partculars withheld) Primary School; that the appellant, her father, used to wait until her aunt left for Garsen after which he would remove “his thing he uses for urinating” and then place it inside her organ “used for peeing”; that the appellant did so on numerous occasions; that, when she screamed, he would tell her “nitakutandika”, meaning “I will beat you up”; and that she informed her aunt of the incidents complained of. 6.PW2, EMJ, an ECD Teacher at (Partculars withheld)Primary School testified that, while undertaking her supervisory duties on 25th May 2018, she noticed that PW1 was asleep on her desk; that she soothingly inquired from PW1 why she was crying, and why she had not done her homework; that PW1 informed her that the appellant, who also happened to be PW2’s uncle, would take her from her bedroom at night and move her to her sibling’s room; that the appellant would then proceed to finger her vagina and then put his penis into her vagina; that the appellant occasionally defiled her in the fields; and that the appellant had threatened to harm her if she told anyone about it. PW2 further testified that, to ascertain the veracity of PW1’s statement, she got one Madam Rose, a PP1 Teacher, and PW3, EBM, the School headmistress, to interrogate PW1; that PW1 repeated what she her told the PP1 teacher and the Headmistress; that they then reported the matter at Idsowe Police Post and thereafter escorted PW1 to (Partculars withheld) Dispensary and Garsen Health Centre for medical examination. PW2 concluded her testimony by producing PW1’s P3 Form in evidence. 7.PW3 testified and confirmed that PW2 did indeed refer PW1 to her, and that PW1 disclosed her ordeal. 8.PW4, Verna Haido Mudha, a Nurse at (Partculars withheld) Dispensary, testified that, on 25th May 2018, PW1 was presented at the health facility alleging that she had been sexually assaulted; that she examined PW1 and found that she had tenderness on her vaginal walls, and that she had no hymen; that she prepared PW1’s Treatment Notes – which she produced before the trial court and subsequently referred her to Garsen Health Centre. 9.PW5, Buya Shevo, a Clinical Officer at Garsen Health Centre, testified that he examined PW1 on 28th May 2018 and prepared a P3 Form; that, upon examination, PW1 was found to have no visible injury, but that her hymen was absent; and that his conclusion was that PW1 had experienced sexual penetration. 10.PW6, CPL Ibrahim Hilo then attached to Garsen Police Station, testified that, on 25th May 2018, PW1 was presented at the station by PW2 and PW3 alleging that the appellant had defiled her; that he interrogated PW1, PW2 and PW3 and established that PW1 had once been withdrawn from school for almost two terms; that PW1’s mother was deceased; and that PW1 lived with her grandmother and occasionally with her aunt. PW6 further testified that he thereafter referred PW1 to (Partculars withheld) Dispensary for medical examination and concluded his testimony after producing PW1’s Age Assessment Certificate dated 18th July 2018, which showed that PW1 was about seven years old. 11.When found to have a case to answer, the appellant called five witnesses and gave a sworn statement in his defence. He stated that, from the beginning of the previous month of December, he had been a casual labourer tasked with planting tree seedlings during the day and protecting them from damage by animals during the night; that he spent his days and nights at his place of work; that he was shockingly arrested at his place of work and charged; that he had a good relationship with PW1, his 2nd-born daughter; that PW1 was coached by her teacher; and that he was always alone at his place of employment. The appellant denied committing the offence. 12.DW2, Hagibo Wazo (Partculars withheld) , gave a sworn statement and testified that, apart from being the appellant’s cousin, he had employed the appellant at his farm from December 2017 to 25th March 2018; that the appellant would work during the day and into the night; that he had provided him accommodation at the farm; that the appellant was arrested at the farm; and that he would leave the appellant at his farm at night and check on him the following morning. 13.DW3, Emma Hawisha Jillo, gave a sworn statement and testified that, on 25th May 2018, PW1 left for school in good health; that she (PW1) did not come home for lunch that day as she usually did; that she went to her school to inquire what had happened; and that, on arrival, she learnt that PW1 had been taken to Hospital. DW3 further testified that she slept in the same room as PW1 when her husband was not in; that she was PW1’s guardian since her mother’s demise; and that she wondered why the teacher had not involved her since they were neighbours. 14.DW4, Anna Nicholas, gave a sworn statement after a voire dire examination and testified that the appellant was her uncle; that, on 25th May 2018, she went to school as usual; that she later learnt that PW1 had been taken to hospital; that she rushed to inform DW3 about it; that she shared a bed with PW1; and that she was not aware of what was going on while she was asleep. 15.The last defence witness, Arisi Loda (DW5) only testified to the fact that the appellant was arrested at his place of work, and that he did not know why the appellant was before the court. 16.In his judgment dated 7th November 2018, the trial Magistrate found that the prosecution had proved beyond any reasonable doubt that the appellant had committed the offence of incest, convicted and sentenced him to life imprisonment. 17.Dissatisfied with the learned Magistrate’s decision, the appellant lodged Criminal Appeal No. 74 of 2018 in the High Court of Kenya at Garsen on the amended grounds that the trial Magistrate erred in law and facts by: omitting to conduct an unequivocal voire dire examination on PW1; convicting the appellant on the basis of evidence marred with discrepancies; failing to acknowledge that the amended charge sheet was not “put in the trial record”; failing to find that crucial evidence was withheld by the prosecution; construing the relevant penal law to be “a minimum mandatory provision”; dismissing his testimony in defence; and by imposing a sentence that did not take into account his mitigation. 18.In its judgment dated 21st September 2023, the High Court (S. M. Githinji, J.) found that, despite the fact that the voire dire examination had been conducted unprocedurally, such a procedural infraction was curable under Article 159(2) (d) of the Constitution; that PW1’s evidence was admissible and needed to be weighed together with the rest of the evidence; that there was no dispute that the appellant was PW1’s father; that penetration was proven through medical evidence; that the alleged alibi did not cover the entire period within which the offence was alleged to have been committed; that the appellant’s defence could not be true and was rightly dismissed; and that the appellant deserved a “stiff sentence”. Accordingly, the High Court dismissed the appellant’s appeal and upheld the trial court’s judgment. 19.Aggrieved by the decision of S. M. Githinji, J., the appellant lodged the instant appeal challenging the High Court decision. From the incomplete record put to us, we can only deduce the appellant’s grounds of appeal from his undated written submissions as well as those of the respondent’s counsel, noting that the record does not contain a duly filed memorandum of appeal. 20.From the appellant’s written submissions, is appeal appears to have been essentially founded on the contention that both the trial Magistrate and the learned Judge in the 1st appellate court erred in failing to find that the ingredients of defilement and incest had not been established beyond reasonable doubt so as to found a conviction; and that his alibi defence proffered at the trial was disregarded. Moreover, his challenge on the ingredients of defilement is perhaps the only point of law that was capable of being raised on 2nd appeal to this Court. 21.We take this view in the interest of justice to avoid the possibility of striking out the appeal on a technicality for lack of a written memorandum of appeal, a decision that would go against the grain of Article 159(2) (d) of the Constitution. In doing so, we are cognisant of the fact that the appellant’s written submissions as well as those of the respondent address specific grievances which deserve our consideration. 22.In support of the appeal, the appellant filed undated written submissions in which no judicial authorities were cited. However, he argued his respective four grounds of appeal, submitting that “identification in the present case was not linked to the crime scene” since he did not share a room or even a house with PW1; that penetration was not proved since the medical examination was done without PW1’s consent; that “the use of a finger to examine the minor could not leave the hymen intact”; that PW1’s age was not proven because her Age Assessment Certificate was produced by PW5 and not the maker of the certificate; and that the prosecution did not prove its case beyond the required standard. By reason of the matters aforesaid, he urged us to allow his appeal, quash his conviction and set aside the sentence meted on him. 23.In reply, the respondent filed written submissions and a list of authorities both dated 16th September 2025 and prepared by Ms. Ngina Mutua, the learned Assistant Director of Public Prosecutions. It is noteworthy that counsel for the respondent submitted on the initial four grounds of appeal to the High Court as now advanced by the appellant in his undated written submissions, plus an additional ground relating to the appellant’s alibi defence advanced at the trial. 24.Counsel cited the cases of Njoroge v Republic [1982] KLR 388; and Karani v R [2010] 1 KLR 73, which highlight this Court’s mandate on second appeal; Anjononi & Others v Republic (1980) KLR 59 where this Court held that recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger; and GMM v Republic [2018] eKLR, highlighting the two ingredients of the offence of incest, which the prosecution was obligated to prove. 25.Counsel submitted that the first ingredient – knowledge that the victim is a relative – was conclusively proven when the appellant, in his sworn defence testimony, confirmed that PW1 was his daughter. Counsel submitted that the second ingredient – penetration – was proven by PW1’s testimony and corroborated by the medical evidence contained in the Treatment Notes produced by PW4 as well as the P3 Form filled by PW5. On the fact of identification, counsel submitted that “there was positive identification by recognition of the appellant” by PW1. On the appellant’s fifth and last ground of appeal – that his defence was not considered – counsel submitted that the two courts below “carefully analyzed and considered the defence evidence and dismissed his alibi defence”. Counsel urged us to dismiss this appeal. 26.Our mandate on a second appeal, as is the one before us, is confined to matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 27.Having carefully considered the record of appeal, the impugned judgment, the respective submissions and the law, we find that this appeal stands or falls on our holding on two main issues on points of law, namely whether the prosecution proved the charge against the appellant to the required threshold; and whether the appellant’s alibi defence was considered. 28.On the 1st issue as to whether the prosecution established its case beyond reasonable doubt, we hasten to observe that PW1’s uncontroverted evidence indisputably established the appellant’s identity by recognition as the perpetrator of the sexual offence repeatedly committed against her, the fact that PW1 was his daughter was confirmed by the appellant’s own testimony during the defence hearing. Secondly, the complainant’s age was confirmed by the Age Assessment Certificate produced by PW6 and, thirdly, the evidence of penetration was confirmed by the Treatment Notes produced by PW4 as well as the P3 Form prepared by PW5. We find nothing on the record to fault the two courts below for concluding that the evidence led by the prosecution proved the charge of incest beyond reasonable doubt. Indeed, we find nothing, as did the High Court, to justify interference with the trial court’s decision to convict the appellant as charged. 29.That said, it would be remiss of us, for the avoidance of doubt, not to pronounce ourselves on the ingredients of incest for which the appellant was convicted. In this regard, section 20(1) of the Act reads: 20. (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. 30.Addressing itself to the ingredients of the offence of incest, this Court at Nakuru in MGK vs. Republic [2020] eKLR held that:“ 11.…. the ingredients that must be established for the offence of incest by a male person is, first, that the victim and the offender are related within the categories stated under section 20(1) of the Sexual Offences Act. Secondly, that the offender committed an act which caused penetration with the victim, and thirdly, the age of the victim must also be established for the proviso to apply.” 30.To our mind, all the ingredients of the offence were established at the trial and affirmed on 1st appeal to the High Court. Firstly, it was common ground that the complainant was the appellant’s biological daughter, and we need not say more on this score. Secondly, the medical report confirmed the complainant’s testimony that the appellant defiled her over a long period of time. In effect, the appellant committed an act which caused penetration to the complainant. 30.The term “penetration” is defined in section 2 of the Act as “partial or complete insertion of the genital organs of a person into the genital organs of another person.” That is precisely what the appellant did to his daughter day after day, the evidence of which we need not re-evaluate. Suffice it to observe that the concurrent findings of the two lower courts that she was not a virgin and that her hymen was long broken, taken together with the other evidence we have alluded to, was conclusive of the fact that the appellant was guilty of incest as charged. 30.The decision of the High Court of Kenya at Bomet in Sigei v Republic [2022] KEHC 3161 (KLR), quoting the Supreme Court of Uganda in Bassita vs. Uganda S.C. Criminal Appeal Number 35 of 1995, cannot escape our attention. As the High Court correctly observed:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims’ own evidence and corroborated by the medical evidence or other evidence.” 30.In view of the foregoing, the mixed issue of law and fact as to whether the prosecution proved its case on the required standard stands settled. 30.Turning to the 2nd and final issue as to whether the appellant’s defence was considered, pages 3 and 4 of the trial court’s judgment demonstrate the depth to which the trial court went in analysing the appellant’s defense. The same holds for the impugned judgment of the 1st appellate court where the learned Judge re-examined and analysed the same evidence at pages 77 to 78 of the record of appeal. The court found that the alibi defence raised by the appellant did not dislodge or cast any doubt on the prosecution evidence in proof of the offence as charged. The learned judge had this to say:“… …. The offence was allegedly committed between 1st March 2018 and 23rd May 2018. The evidence of DW2 in relation to the raised alibi by the appellant, shows he was employed in the alleged farm from December to March, 25th, 2018. The alleged alibi does not cover the entire period within which the offence was alleged to have been committed. He therefore had the opportunity to commit the offence from 25th March, 2018 up to 23rd May, 2018.” 30.We borrow a leaf from the pronouncement of the High Court of Zimbabwe at Harare sitting on appeal in Effort Mutanda v S [2015] ZAFSHC 13 while addressing itself on the issue as to whether defence evidence was considered and noted that:“I must, however, make it clear that by requiring the trial court to consider and weigh all evidence is not meant that the judgment of the trial court must also include a complete embodiment of all evidence led, as if it comprises a transcript of the proceedings. All it means is that the summary of the evidence led must indeed entail a complete embodiment of all the material evidence led.… ….In other words, this court must consider whether the magistrate considered all the evidence, weighed it correctly and correctly applied the law or legal principles to it in arriving at his judgment in respect of both the convictions and sentences. This exercise necessarily entails a close scrutiny of the evidence of each witness within the context of the totality of evidence, and what the trial court’s findings were in relation to such evidence.” 30.Having examined the record of appeal, the grounds on which it is anchored, the appellant’s submissions and those of the Assistant Director of Public Prosecutions, the cited authorities and the law,we find that the appeal has no merit and is hereby dismissed in its entirety. Consequently, the judgment of the High Court of Kenya at Garsen (S. M. Githinji J.) delivered on 21st September 2023 is hereby upheld. Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.F. TUIYOTT…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALF. W. NGENYE-MACHARIA………………………………...JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR