https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10760

SNG v Republic (Criminal Appeal E039 of 2024) [2026] KEHC 10760 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 10760 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E039 of 2024 PK Rotich, J June 29, 2026 Between SNG Appellant and Republic Respondent (Being an appeal against the Judgement and sentence by Hon.O.Mogire(SPM) delivered on 24.7.2024 in Eldoret CM SO Case No.120 of 2022) Judgment 1.The appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that between the months of May 2022 and 4th September, 2022 at [Particulars Withheld], Kapseret Sub- County, the accused wilfully and unlawfully caused his genital organ (Penis) to penetrate the genital organ (vagina) of LW a child aged 13 years who is known to the appellant to be his daughter. 2.In the alternative, the appellant is charged with committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that between the months of May to September 2023 at [Particulars Withheld], Kapseret Sub-county, Uasin Gishu County, the accused, wilfully an unlawfully caused his genital organ (penis) to come into contact with genital organ (vagina) of LW a child who is known to him to be his daughter. 3.The trial magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of the offence of incest. Upon conviction, the appellant was sentenced to serve 50 years. 4.Being aggrieved by the conviction and sentence by the trial court, the appellant preferred an appeal against the entire judgement of the court. The appeal is based on the following 12 grounds of appeal which can be summarised as follows: -1.That the Honourable trial magistrate erred in law and fact by convicting and sentencing the appellant on the basis of inconclusive evidence.2.That the Honourable magistrate erred in law and fact in disregarding the appellant’s evidence and relying on uncorroborated evidence to convict him.3.That the trial magistrate erred in law and fact by not establishing the age of the complainant.4.That the Honourable magistrate erred in law and fact in not finding that hymen per se is not proof of defilement.5.That the long punitive sentence of 50 years meted on the appellant was not proportionate to the offence but excessive and harsh.6.That the trial magistrate erred in law and fact as the medical examination that was done on the complainant did not reveal defilement. 5.PW1, the complainant stated that she was a class 8 pupil at [Particulars Withheld] Primary school in Kamukunji and resided at [Particulars Withheld] Kamukunji. Previously, she resided at [Particulars Withheld] with her step father and her siblings, JW and JN. Her mother, PW1 stated, ran away while they were in Turbo in April 2022. PW1 stated, their step-father decided that they move and they moved to [Particulars Withheld]. One evening, PW1 stated, while they were watching TV and her other siblings had slept, her stepfather asked about her age and she responded she was 13 years old. He also asked her, PW1 stated, whether she had slept with any man and she responded she had never done. The appellant then rose from his seat, PW1 stated, held her hand, pulled her to the bedroom and tried to remove her clothes, but she resisted and ran away and went to her bed and slept. She slept in the same room with her younger siblings. 6.The following day, PW1 stated, she woke up and went to school. In the evening, she went to her room and slept. At midnight, the complainant stated, the accused carried her to his room, laid her on his bed and removed her clothes. He also removed his clothes, PW1 also stated that appellant caused his penis to enter her vagina and had sexual intercourse with her. When he was done, PW1 stated, the appellant told her to go to her bed and tell no one. PW1, further, stated the appellant’s bed was in the sitting room and there was a curtain which separated the bed from the TV area. 7.PW1, further, stated that the appellant repeatedly had sexual intercourse with her until the month of September, 2022. One Thursday, PW1 stated, she felt agonized and told her teacher what was happening. On Sunday after revealing to the teacher what was happening, her stepfather again lifted her from her bed, removed her clothes and caused his penis to penetrate into her vagina. She explained that both penis and vagina are organs used by men and women respectively to pass urine from the body. 8.On Monday, when she arrived at school, PW1 stated, she immediately went to Teacher Grace and informed her that her Step-father sexually molested her the previous night and the teacher immediately took her to Kisor Hospital for examination and treatment. The following morning, PW1 stated, she was taken to Moi Teaching and Referral Hospital using the vehicle of her Head Teacher where she was examined and taken to Simat Police Station. She was accompanied by a teacher. In the night, PW1 further stated, her stepfather was arrested and she was taken to the [Particulars Withheld]. Finally, the complainant stated that she was born on 14th May, 2009. 9.PW2, Grace Chebet Saina who is a teacher at Kikenyo Primary School stated that she noticed that the complainant was withdrawn. She was her class teacher. On inquiring from her in confidence what the problem was, PW2 stated, the complainant confided in her that her mother ran away and she was staying with her step father and two siblings. She also told, while crying, that her step father was defiling her every night and during the day he assigned her household duties. 10.PW2, further, stated she notified the Head Teacher what the complainant had shared and requested him to take the child to MTRH for examination. At the hospital, PW2 stated, the Medical Officer referred the matter to Simat Police Station where the police issued a P3 form which was completed at MTRH and the accused was immediately arrested and the child was taken to [Particulars Withheld]. 11.PW3, Dr. Irene Simiyu of MTRH who examined the complainant produced her P3 form. PW3 stated the minor was seen on 6/9/2022 and that she was aged 13 years. Her hospital reference No. was 1172524. PW3 examined the complainant’s vagina and noted she had multiple healed hymenal tears at 3, 4, 6 and 9 O’clock. PW2 also stated that the complainant had squamous cell 324 epithelia cells. Based on the examination, PW3 stated, the minor was defiled. The doctor, further, stated the complainant’s cell epithelial were elevated and that showed she had participated in sex within about 72 hours before. PW3 produced the P3 form as P. Exhibit No. 1. 12.In his defence, the appellant confirmed that the complainant was her step daughter and that the mother ran away leaving him to fend for the complainant and her two siblings alone. The appellant, further, stated that there was not way he could engage PW1 in sexual intercourse. He also claimed PW2 requested him to be his lover and when he declined, she was infuriated and promised to teach him a lesson. 13.This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. (see.Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR) 14.Having carefully considered the evidence on record and the parties’submissions, the Court identifies for determination in matter. These are: -1.Whether the trial magistrate erred in law in finding that the prosecution proved its case beyond reasonable doubt against the accused.2.Whether the trial magistrate erred in law in sentencing the appellant to serve 50 years imprisonment. 15.Section 20(1) of the Sexual Offences Act provides: -“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 the offence termed as incest and is liable to imprisonment for a term of not less that ten years, provided that if it is alleged in the information or charge that 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 consent of the female person”. 16.In the case of MG -vs- Republic (Criminal appeal No. E051 of 2021) (2022) KEHC 14454 (KLR)27th October 22) the court sitting at Voi highlighted the key ingredients of the offence of incest as follows; -1.Proof that the offender is a relative of the victim.2.Proof of penetration or indecent act.3.Identification of the perpetrator.4.Proof of the age of the victim. 17.LW1, in her testimony stated that she is the step daughter of the accused person and the accused conceded to this fact in his position having named her mother as his second wife. The accused stated that, PW1’s mother introduced her to him in the year 2020 and he accepted and took her as his step daughter. The appellant, therefore had a filial relationship with the minor as a step father. In her testimony, PW1, stated that she was aged 13 years at the time of the alleged incident herein as she was born on 14th May 2009. 18.Dr. Irene Simiyu of Moi Teaching and Referral Hospital also stated that the child was 13 years. The age of the complainant was not disputed by the accused. It is, therefore, my finding she was aged 13 years at the time of commission of the alleged offence herein. 19.On the question of penetration, section 2 of the Sexual Offence Act defines penetration as follows: -“Penetration means the partial or complete insertion of the genital organ of a person in the genital organ of another person”. 20.The complainant (LW) in her testimony stated that the appellant on several occasions penetrated her genital organ with his penis on a number of occasions between April 2022 until September, 2022 when she was rescued. At the 1st instance, PW1 stated, the accused in the night while they were watching TV and her siblings had slept, asked whether she had ever slept with a man and she answered in negative. The appellant also sought to know her age, PW1 stated and she responded she was aged 13 years. Thereafter, PW1 stated the appellant held her hand, pulled her to his bed and attempted to remove her clothes but she successfully managed to resist and ran away to join her other siblings who were already asleep. 21.The following day, PW1 stated, she woke up and went to school and in the evening, she went to her room and slept. At midnight, the complainant stated, the accused carried her to his room, laid her on his bed and removed her clothes. He also removed his clothes, PW1, further stated, that appellant caused his penis to enter her vagina and had sexual intercourse with her. 22.PW1, further, stated that the appellant repeatedly had sexual intercourse with her until the month of September, 2022. One Thursday, PW1 stated, she felt agonized and told her teacher what was happening. On Sunday after revealing to the teacher what was happening, her stepfather again lifted her from her bed, removed her clothes and caused his penis to penetrate into her vagina. She explained that both penis and vagina are organs used by men and women respectively to pass urine from the body. 23.The evidence of PW1 was corroborated PW3, Dr. Irene Simiyu of MTRH who examined the complainant on 6.9.2022 and produced her P3 form (P.Exhibit 1) PW3 stated she examined the complainant’s vagina and noted she had multiple healed hymenal tears at 3, 4, 6 and 9 O’clock. PW2 also stated that the complainant had squamous cell 324 epithelia cells. Based on the examination, the Doctor concluded that the minor was defiled. The doctor, further, stated the complainant’s cell epithelial were elevated and that showed she had participated in sex within about 72 hours before. 24.It is very clear that the appellant penetrated the vagina of the complainant severally with his penis. His defence that there was no way he could engage in sexual intercourse with the complainant has no basis. 25.The question of identification is also not in dispute herein. The complainant is the appellant step- daughter and they lived and slept in the same house. 26.The upshot of my findings above is that the prosecution proved its case of incent at the trial beyond reasonable doubt against the accused and this court, therefore uphold the conviction of the appellant. 27.Under section 20(1) of the Sexual Offences Act the offence of incest of a minor attracts a sentence of life imprisonment. The appellant herein was, however, sentenced to serve 50 years imprisonment. Sentences prescribed for sexual offences under the Act are mandatory. The sentence of the appellant herein is, therefore, substituted with life imprisonment.Right of Appeal within 14 days. DATED, SIGNED AND DELIVERED ONLINE VIA MS TEAMS THIS 29TH DAY OF JUNE 2026HON. P. K. ROTICHJUDGEIn the presence of:Appellant in personMs. Kerenge for DPPCA - Kipchirchir