FMB v Republic (Criminal Appeal 195 of 2018) [2025] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed FMB's incest appeal, confirming the life sentence was deserved and clarifying that 'liable' means maximum, not mandatory.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the age of the complainant was proved beyond reasonable doubt
- 2.Whether contradictions and inconsistencies in the prosecution evidence were fatal to the conviction
- 3.Whether the appellant's constitutional right to a fair trial was violated by non-supply of witness statements
- 4.Whether the failure to call the complainant's mother as a witness vitiated the conviction
- 5.Whether all elements of the offence of incest under section 20(1) of the Sexual Offences Act were proved
- 6.Whether the life imprisonment sentence was lawful and deserved
Key legal issues
#Proof of the complainant's age
The apparent discrepancy between the P3 form (seven years) and the age assessment form (below twelve) is not a per se contradiction; what the prosecution had to prove under section 20(1) was that the complainant was below eighteen, which was established
The Court held that the age assessment form was categorical but non-specific, while the clinical officer was specific that the girl was seven. Both are consistent with the statutory requirement that the victim be under eighteen. The absence of a birth certificate did not render the proof of age defective since other evidence satisfied the ingredient.
Contradictions in prosecution evidence
The typographical errors in the clinical officer's name and the date, and the hand-versus-penis discrepancy, were not fatal; the tender age of the complainant and the darkness provided a plausible explanation
The Court applied the rule that only grave, unexplained contradictions pointing to deliberate untruthfulness or affecting the substance of the case warrant rejection of evidence. The documentary evidence (P3 form and treatment notes) and the positive test for gram-positive cocci corroborated penetration, so the concurrent findings of the lower courts were accepted.
Alleged fair-trial violation (non-supply of witness statements)
The trial record showed the appellant was supplied with witness statements or failed to alert the court he lacked them; the omnibus complaint not raised with specificity before the High Court could not be entertained on second appeal
The Court found the trial court twice ordered supply of statements and the appellant never indicated unpreparedness for want of them when the trial took off. Further, at the first appellate level the complaint was raised generically without specifying the rights violated, so the High Court made no findings on it and the issue was doubtful at that late stage.
Non-attendance of the complainant's mother as a witness
No rule requires all witnesses to be called; the mother's evidence was not essential as all elements were proved without it, and the appellant may have been complicit in her disappearance
The Court restated the Bukenya rule that the prosecution need only call sufficient witnesses, and the adverse inference applies only where the uncalled witness was essential and the extant evidence barely adequate. Here the elements were established without the mother, and evidence suggested the appellant caused her unavailability, so he could not benefit from his own transgression.
Sentence of life imprisonment
The sentence under the proviso to section 20(1) is discretionary and not mandatory, but the maximum sentence was deserved on the facts
Following M.K. v Republic, the Court affirmed that 'liable' means maximum not mandatory. The magistrate and the Judge were aware of this and exercised discretion. Given the complainant's age of seven, her status as a step-child, and the appellant's apparent orchestration of witnesses' disappearance, the maximum penalty was warranted and the sentence was left undisturbed.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles
- Not every contradiction in prosecution evidence is fatal; minor inconsistencies not affecting the substance of the case may be ignored
- The prosecution is not required to call all witnesses, only a sufficient number; the Bukenya adverse-inference exception applies only where the uncalled witness was essential and extant evidence is barely adequate
- The word 'liable' in the proviso to section 20(1) of the Sexual Offences Act confers a discretionary maximum, not a mandatory, sentence of life imprisonment
- Under section 22(1) of the Sexual Offences Act, a man married to the complainant's mother falls within the prohibited degree of consanguinity for incest
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and life imprisonment sentence imposed by the trial court and upheld by the High Court remain undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Busia
- Appeal against conviction and sentence from S.O.A Case No. 28 of 2015, Chief Magistrate's Court at Busia
- Jurisdiction invoked
- Section 361(a) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Quashing of conviction for incest
All elements of the offence - penetration, prohibited consanguinity, and age below eighteen - were proved beyond reasonable doubt
Setting aside the life imprisonment sentence
Although 'liable' in section 20(1) is not mandatory, the maximum sentence was deserved given the complainant's tender age and the appellant's conduct
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The result is that this appeal lacks merit and we dismiss it in its entirety.
Orders accordingly.
We will, therefore, leave the sentence undisturbed.
This being a second appeal, our jurisdiction is limited by dint of Section 361(a) of the Criminal Procedure Code to deal with matters of law only and not to delve into matters of fact
Our jurisprudence has consistently shown that there is no rule that requires all the witness to be called in a trial.
Issues in the judgment
#The coram lists only two judges' signatures in the body (Hannah Okwengu and H.A. Omondi) with Joel Ngugi also named; the judgment is dated at Kisumu but the bench listing appears after delivery, which is normal, so this is a minor formatting observation only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FMB v Republic (Criminal Appeal 195 of 2018) [2025] KECA 10 (KLR)", Case Analysis (2025). Criminal Appeal (not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/10/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.