https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11887

SNN v Republic (Criminal Appeal E125 of 2023) [2026] KEHC 11887 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11887 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E125 of 2023 SC Chirchir, J July 23, 2026 Between SNN Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. J. Irura (PM) in Kigumo Sexual Offence Case No. 004 of 2019 delivered on 22nd day of November, 2023) Judgment 1.The Appellant herein, was charged with two counts of incest and two alternative counts of committing an indecent act with a child before the trial court. 2.In count 1, the Appellant 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 that on 16th January 2019 at around 2100 hours at [Particulars Withheld] village in Muranga South Sub County within Muranga County, the Appellant intentionally penetrated the vagina of CW with his penis who was to his knowledge his daughter, a child aged 9 years. 3.In Count 2 the Appellant was charged with Incest contrary to Section 20(1) of the Act. The particulars being that on the 16th day of January 2019 at around 2100 hours at [Particulars Withheld] village in Muranga South Sub County within Muranga county, the accused person intentionally penetrated the vagina of DW with his penis who was to his knowledge his daughter, a child aged 7 years. 4.In the alternative Count to each count, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 5.He was convicted of the main charge on both counts, and sentenced to a total of 30 years, less the period he had spent in remand prior to conviction. 6.The Appellant was aggrieved by the conviction and sentence and proffered this appeal. Petition of Appeal 7.The Appellant has listed the following grounds:1)That, the learned trial magistrate erred on both law and fact by convicting the appellant on prosecution evidence which was obtained under coercion, inducement, and luring of witnesses.2)That, the learned trial magistrate erred on both law and facts by convicting on insufficient prosecution evidence.3)That, the learned trial magistrate erred on both law and facts by convicting on a dubious and conjecture and failed to consider appellant's plausible defense.4)That, the learned trial magistrate erred on both law and facts by relying on unfounded evidence that was marred with contradictions and inconsistencies.5)That, the learned trial magistrate erred on both law and facts by relying on case that violated, infringed and denied the right to fair trial under article 50 (2) of the 2010 constitution.6)That more grounds to be adduced during the hearing of this appeal. 8.The Appeal was heard by way of written submissions. Appellant’s Submissions. 9.The Appellant, submits that the charges against him were a fabrication arising from a long-standing land grudge between himself and his brother, dating back to 2018. He recounts a violent confrontation on the 7th October, 2020, during which his brother allegedly hit him with an axe, resulting in a fractured hip. 10.He further states that it was only after he reported this assault to the Maragua Police Station that the incest charges were framed as a retaliatory measure. He further alleges that his brother’s wife, H, coached the children to lie after he had reported her husband to the police. Their evidence, he argues, are therefore unreliable. 11.On unreliability of witnesses, the Appellant relies on the case of Ndungu Kaimani vs. Republic (1997) eKLR, where the court held:“We lay down the minimum standard as follows; the witness upon whose evidence it is proposed to be relied on, should not create an impression in the mind of the court that he is not a straight forward person or raise a suspicion about his trustworthiness, or do (or say) something which indicate that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence”. 12.He further submits that it is a matter of public domain that sexual offence charges are frequently used for personal vendettas or extortion, citing the observation of the Court of Appeal in Eliud Waweru vs Republic (2019) eKLR (before JJA Nambuye, Musinga, and Kiage). 13.The Appellant submits that the prosecution failed to prove the elements of the offence beyond reasonable doubt. He maintains that legal jurisprudence, as set out in Fappyton Mutuku Ngui vs Rep (2010) eKLR and Francis Ndungu Tweni vs Rep (2017)eKLR, demands that age, penile penetration, and identity of the perpetrator must be proved with cogency. 14.Regarding penetration, he argues that the medical evidence was inconclusive and failed to meet the definition provided under Section 2 of the Act. He points out that for PW2, the treatment occurred nearly two years after the alleged incident and she declined examination, while for PW3, the clinician noted Genitalia is normal despite an old broken hymen. He further challenges the validity of the medical documents produced by PW5, stating they were neither signed nor stamped and that the actual examiner, Moses Gichuki, was never called to testify, thus rendering the evidence hearsay. 15.On the issue of age, the Appellant faults the prosecution for failing to produce birth certificates, arguing that age must be proved with a cogent evidence but not gain said. 16.The Appellant asserts that the trial court failed to judicially apply itself to his defence, dismissing it as an afterthought without reason. Finally, he invites this court, as a first appellate court, to exercise its duty to independently re-evaluate the record as established in Okeno vs Republic (1972) E.A 32 and set him at liberty. Respondent’s Submissions 17.The Respondent submits that the prosecution successfully proved all the essential elements of the offence of incest as defined under Section 20(1) of the Sexual Offences Act. These elements are identified as: The age of the victim; The act of penetration; and the specific relationship between the victim and the perpetrator. 18.It is the Respondent’s submission that the testimony of PW4, who produced the age assessment reports as exhibits, sufficiently confirmed that both complainants were minors at the material time. 19.The Respondent draws the court’s attention to Section 2 of the Act, which defines penetration as the partial or complete insertion of a genital organ into that of another. It is submitted that penetration was proved beyond any reasonable doubt through Viva Voce evidence as married with medical evidence. The Respondent points to the testimony of PW2, who described the Appellant’s bad manners, evidence which was corroborated by the clinical findings of PW5. The Respondent highlights that PW5’s examination revealed bruises and tears in the victims' genitalia and a broken hymen, which collectively established the act of penetration. 20.The Respondent submits that it was never in dispute that the Appellant is the biological father of the victims, a fact clearly stated by the children themselves. 21.Finally, the Respondent addresses the Appellant’s claim that his defence was ignored. It is submitted that the trial court did indeed consider the Appellant’s sworn testimony and his allegations of a fabrication arising from a family dispute. However, the Respondent maintains that the trial court was correct in its finding that this defence was a sham and an afterthought. Consequently, the Respondent prays that this court finds the appeal devoid of merit and dismiss it accordingly. Summary of the Evidence 22.PW1, testified that on 18th January 2019, she was in the farm cutting Animal feeds when the children of the Appellant approached her and complained that they were having problems with their father, stating that he was beating them when he was drunk. She further learnt that the children were not attending school at the time. 23.In response to their complaints, she instructed her daughter, who was with her, to take the children to the Chief to report their father's conduct. Following this report, the children were taken to Maragua Police Station and referred to the hospital. She further stated that after the children returned from the hospital and the Appellant was arrested, she went to the police station and recorded a statement. 24.PW1 further told the court that the children eventually revealed to her that their father used to call them into his house under the pretext of asking for fire or water. Once they were inside, he would remove their clothes and defile them. She informed the court that the children, identified as CW and DW were about 8 years old at the time, had been living with their father following the death of their grandmother and the flight of their mother. 25.PW2, CW was the 1st complainant. She testified that she is a student at [Particulars Withheld] primary school, currently in standard six and resides at the Kandara children's home. Prior to her admission to the children's home, she lived with her father and her sisters, DW and A 26.PW2 recalled that one day, while her aunt,BW (PW1), was at the shamba, she and her sister D approached her and reported to her that their father had been doing “bad manners” to them. PW2 stated that these acts occurred at night in their father's room, where he would remove her clothes as well as his own, to defile her. She further stated that they were not attending school at the time and would occasionally run away to their grandfather's home. 27.She stated that their father defiled her and her sister D on separate days, though he did not touch their youngest sister, A, because she was too small. Following their report to their aunt, they were taken to Maragua hospital where, although she refused a physical examination, blood and urine samples were obtained. 28.Under cross-examination, she stated that their mother had left them and that they stayed with their father. She insisted that their father was doing “bad manners” to them. 29.PW3 was DW the 2nd complainant, aged 11 years. She testified that the Appellant, was her biological father. She recalled the time she lived at home in Kianjiru-ini with her father and sisters. She testified that the Appellant used to come home drunk at night and would ask her to bring him water. Upon taking the water to him, he would subject her to bad manners. 30.She further testified that following these incidents, she and her sister reported the matter to their aunt,BW (PW1), who advised them to go to the Chief. The Chief referred them to Maragua police station, from where they were taken to Maragua hospital for examination. 31.PW4 was the investigations officer. He informed the court that he took over the conduct of the subject case from Cpl Samida Doyo, the initial investigating officer, following her transfer to Thika. 32.He told the court that on 19th January 2019, at about 11:05 hours, two young girls, CW and DW, aged 9 and 7 years respectively, were brought to Maragua Police Station by their cousin, AW, to report a case of defilement. He stated that Cpl Samida was assigned to investigate the matter and subsequently escorted the two complainants and their cousin to Maragua Sub-County Hospital for medical treatment and examination. He told the court that the medical examination resulted in the filling of P3 forms, which indicated that the girls’ hymens had been broken. 33.He further testified that the complainants reported that their biological father,SN, was the perpetrator who had defiled them. Following these reports, Cpl Samida, in the company of other officers, apprehended the accused person, who was then brought to the station and subsequently charged. He produced the age assessment reports. 34.PW5 was the clinical officer, employed by the Murang’a County Government. She testified that the DW then aged 7 years was treated on 19th January 2019 following a report of defilement alleged to have occurred on 16th January 2019 by a person known to her. On examination, she found the child to be stable with normal genitalia, but noted an old broken hymen alongside bruises and tears in her genitalia. The witness confirmed that she filled and signed the P3 form on 19th January 2019 based on these findings and produced the P3 form and treatment notes as PExb. 2 and PExb. 3, respectively. 35.Further, PW5 testified that CW, then aged 12 years was treated on 20th October 2022 regarding a sexual assault alleged to have taken place on 16th January 2019. The witness further explained to the court that while the minor had been treated previously on 19th January 2019, the original treatment card and P3 form had been misplaced. However, a laboratory report from the 2019 visit was available, which showed a negative HVS test but a urinalysis positive for pus cells. She stated that during the 2022 visit, the minor declined a physical examination. The Appellant’s Case 36.The Appellant, testified on oath and did not call a witness. He stated that on 7th October 2020, he woke up and passed through his brother's land, where his brother confronted him and hit him with an axe, injuring his left leg. He stated that he remained in his house for three days before his sister took him to the hospital, where an x-ray revealed a fractured hip joint. 37.He reported the assault at Maragua Police Station. He stated that it was only after he made this report that he was framed with the incest charges. He testified that when his children informed his brother’s wife, H, that he had reported her husband to the police, she sent the children away to his sister and coached them to say that he had defiled them. He stated that his children did not find his sister at home but only their cousin; they subsequently returned to H, who provided them with clothes and took them to the Chief, leading to the report at the police station. 38.The Appellant further testified that the children had previously visited their grandmother in Nakuru, where their mother had reported that they were defiled by someone else. He also testified that DW had been defiled on a separate occasion in Maragua, an incident he personally reported to the police and for which he took her to the hospital. He alleged that the treatment notes for that specific incident were carried away by the officer who arrested him in the present case. He emphasized that his brother had attacked him previously, including an incident where he was cut on the head and taken to the hospital byBW. 39.Under cross-examination, the Appellant stated that H, his brother’s wife, was the individual who told the children to lie. He testified that the person who reported the matter to the police was a cousin, a daughter of PW1. He stated he did not report the alleged Nakuru defilement because it did not occur in his area. Regarding the previous incident involving DW at Maragua, he stated he could not recall the exact date and noted that the case never proceeded to court as he was arrested and the perpetrator had fled. Analysis and determination 40.This being a first appeal, this Court is under the duty to review and re-evaluate the evidence tendered, and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. (see: Kiilu & Ano vs Republic (2005)1 KLR 17A) 41.I have considered the record of appeal, the judgment of the learned trial magistrate, the grounds of appeal and the rival submissions by the parties. In my view, the following issues arise for determination:a)Whether the prosecution proved the offence of incest contrary to Section 20(1) of the Sexual Offences Act beyond reasonable doubt;b)Whether the alleged contradictions, inconsistencies and procedural complaints rendered the conviction unsafe;c)Whether the Appellant's defence was properly considered; andd)Whether the sentence imposed calls for interference. Whether the prosecution proved the offence beyond reasonable doubt 42.The Appellant was convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The Court of Appeal in JM v Republic [2025] KECA 694 (KLR) reaffirmed its earlier decision in MGK v Republic [2020] eKLR that the prosecution must establish four essential ingredients, namely:a)that the complainant and the accused are related within the prohibited degrees of relationship under Section 20(1);b)that there was penetration;c)that the accused committed the act of penetration; andd)where the enhanced sentence is sought, that the complainant was below eighteen years of age. Age of the complainants 43.The Appellant submitted that age was not proved because no birth certificates were produced. The Court of Appeal in Fappyton Mutuku Ngui v Republic [2012] eKLR held that age may be proved by a birth certificate, age assessment report, medical evidence or other credible evidence. 44.In this case, PW4 produced age assessment reports confirming that CW was nine years old while DW was seven years old at the time of the incident. Their ages equally appear consistently in the charge sheet, medical evidence and oral testimony. More importantly, the Appellant never disputed that they were children. This element of the offence was proved. The relationship between the Appellant and the complainants 45.The relationship was equally proved beyond doubt. Both complainants testified that the Appellant was their biological father. PW1 confirmed that following the departure of their mother, the children remained under the Appellant's care. During his defence, the Appellant himself admitted that the complainants were his daughters. Whether penetration was proved 46.The Appellant contends that penetration was not established because the medical evidence was inconclusive, and one complainant declined physical examination. 47.Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another. 48.It is true that the older child declined to be examined, but the Court of Appeal has repeatedly held that medical evidence is not the only method of proving penetration. In Mark Oiruri Mose v Republic [2013] eKLR, the Court held that credible oral testimony by the complainant may by itself establish penetration. 49.By virtue of the proviso to Section 124 of the Evidence Act, the testimony of a child victim of a sexual offence does not require corroboration where the trial court records reasons for believing that witness to be truthful. The Court further observed that medical evidence merely fortifies otherwise credible testimony but is not an indispensable prerequisite to conviction. 50.Likewise, in SMI v Republic [2025] KEHC 4833 (KLR), the High Court, held that even where medical evidence is challenged, credible testimony by the complainant remains sufficient proof of penetration if believed by the court. 51.I have perused the lower court’s judgment, and observed that on page 14 of the judgment the trial magistrate gave reasons for believing their evidence. I have independently considered their evidence. I find the testimonies of PW2 and PW3 to have been simple and outright. Each narrated how the Appellant would call her into his room at night before sexually violating her. Their evidence was consistent and mutually corroborative, to have formed a basis of conviction. Am therefore satisfied that the children were speaking the truth. 52.Having independently evaluated the evidence, I am satisfied that penetration was proved beyond reasonable doubt. Identity of the perpetrator 53.The complainants were not identifying a stranger. They were identifying their biological father. The Appellant too confirmed that the complainants were his children. This was therefore a case of recognition. There was no possibility of mistaken identity. Whether there were any material contradictions and inconsistencies. 54.The Appellant argued that the prosecution evidence contained material inconsistencies. It is settled that only material contradictions going to the root of the prosecution’s case are capable of vitiating a conviction. Minor discrepancies are however expected in truthful testimony and often reinforce rather than diminish credibility. 55.Upon re-evaluating the record, I find that the discrepancies identified by the Appellant relate mainly to the reconstruction of medical records and the chronology of reporting. None affects the essential ingredients of the offence. Whether the Appellant's defence created reasonable doubt 56.The Appellant's defence was that the charges were fabricated following a long-standing land dispute between himself and his brother and that his children had been coached by their mother to implicate him. 57.Whereas it is true that courts should approach allegations arising from domestic or family disputes with caution, the existence of a family disagreement does not automatically render a prosecution incredible. The court must evaluate the totality of the evidence to determine whether the allegation is reasonably true. 58.In JKG v Republic [2024] KEHC 11961 (KLR), where the appellant similarly alleged that the prosecution arose from a domestic feud and coaching of the complainant, the High Court held that such allegations, without cogent supporting evidence, could not outweigh consistent testimony by the child victim corroborated by surrounding circumstances. Similarly, in the present case the Appellant called no witness to substantiate the alleged grudge. No independent evidence was produced demonstrating that the complainants had been coached or that PW1, the investigating officer, or any other witness participated in a conspiracy against him. 59.Further the accusations against the children’s mother are farfetched, considering that the mother was not living with them. There was evidence that she had long deserted the matrimonial home. The court has further considered that these were young children. Am not persuaded that they were old enough to retain any fabricated information and be able to relay it to the court in the straight forward manner that they did . The Appellant’s defence was implausible. It did not reasonable doubt in the prosecution case. Whether the sentence was lawful 60.Sentencing is an exercise of judicial discretion. As stated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, an appellate court will only interfere where the sentence is illegal, founded upon wrong principles, or manifestly excessive. 61.The proviso to section 20(1) of the Sexual Offences Act provides that where the victim is below eighteen years, the offender is liable to life imprisonment. The complainants herein were aged nine and seven years respectively. The sentence imposed was therefore lawful and in accordance with the law. The court has no reason to interfere with it. 62.Consequently, the Appeal is dismissed. The conviction of the Appellant is affirmed and the sentence is upheld. DATED SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS, THIS 23RD DAY OF JULY 2026S. CHIRCHIRJUDGE.In the presence of:Roba Katelo- Court AssistantThe AppellantMr. Majale for the Respondent.