ENL v Republic

the decisions of the trial or rst appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." Our brief consideration of the facts will therefore be purely for establishing whether the two courts below carried out their mandate as was required of them in law. 2. PW1 who was found by the trial Magistrate to be intelligent and spoke with condence testied that she was 14 years old and a pupil at a local school in Class 8. She lived with her mother, the appellant and a younger brother. Sometime in September, 2009 the appellant accused her of bad behavior – that he had received reports that she left the house at night and was seen in the company of boys. He disciplined her through caning. On 15th September, 2009 the appellant ordered that he and PW1 visit the Chief’s oce where he wanted to make a report about her indiscipline but they did not nd the Chief. They were visiting the same oce the next day in the evening but while enroute the appellant, after some discussions, informed her that he had forgiven her and they should go back home. He chose a dierent lonely route characterized by darkness and when she protested he claimed that he was the older of the two and she should not question his decision. Shortly thereafter, they came to a bushy area where there was tall grass. He grabbed her, carried her shoulder high, covered her mouth with a piece of cloth so that she could not cry out. She described in graphic detail how he pushed her to the ground, pulled up her skirt, tore o her biker and panty and proceeded to dele her. She passed out sometime during the ordeal due to pain and when she came to the appellant was standing at a short distance from where she lay on the ground and he then left. She went home and cried the rest of the night. The appellant escorted her and her brother the next day to school after he had ensured that her mother (PW4) did not meet her at all. 3. In school teacher MMM (PW3) noticed that PW1 was not acting normally. PW1 excused herself from class asking to speak to the teacher privately and informed her that she had been deled by the appellant the previous night. PW3 engaged other teachers and a social worker and they took PW1 to Nairobi Women’s Hospital where she was seen by Dr. Muhombe. In a report produced by Dr. Adan Ridhuan (PW5) it was reported that PW1 had been received by that hospital where she had revealed that she had been deled by the appellant. On examination there was a thin ring of hymen left which had small fresh tears at 5 o’clock and 9 o’clock position. There were lacerations on the pineal body the area between the vaginal opening and the anus and there was presence of spermatozoa. The doctor conrmed that there was sexual assault, ndings that were also conrmed by the police doctor Dr. Zephania Kamau (PW2). 4. PW1’s mother (PW4) conrmed how the appellant had prevented her from seeing PW1 on the fateful night and the next morning. 5. The appellant was arrested and charged as per the evidence of the investigation’s ocer Margaret Maithya (PW6) of Industrial Area Police Station. 6. Put on his defence the appellant denied the oence in an unsworn statement stating that he had not been with PW1 alone at all. 7. As we have seen the appellant was convicted and his rst appeal dismissed. 8. When the appeal came up for hearing before us on 22nd February, 2022 on a virtual platform the appellant appeared in person from Kitengela Prison while Miss Wang’ele, learned counsel, appeared for the oce of the Director of Public Prosecutions. The appellant had not led written submissions despite being required to do so through Hearing Notice served upon him. He told us that he was dissatised because he was jailed for 25 years. He asked us to help him, to interfere with sentence and let him to go home where he was the sole breadwinner of the family. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/736/eng@2022-07-22 2

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9. In opposing the appeal Miss Wang’ele submitted that severity of sentence is a matter of fact which our mandate does not allow us to deal with unless the sentence awarded in illegal. 10. The appellant was charged with incest it being alleged that he had deled his daughter who was aged 14 years. The proviso to Section 20 of the Sexual Offences Act provides that where the female person deled is under the age of 18 years the accused shall be sentenced to life imprisonment. 11. It was proved on the evidence that the appellant was PW1’s step father (she had known him all along as her biological father until he was charged in court after deling her). He was a step father to PW1 and was properly convicted under the provisions of the Sexual Offences Act. The prosecution proved on evidence that PW1 was 14 years old and both doctors established that PW1 was deled by a person who she named as the appellant. 12. The law does not allow us to deal with the sentence awarded which was within the law. 13. This appeal has no merit and we accordingly dismiss it. 14. As Nambuye, JA has since retired from service as a Judge of this Court this Judgment is signed in accordance with rule 32(2) of the rules of this Court. DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF JULY, 2022. A.K. MURGOR .................................... JUDGE OF APPEAL S. ole KANTAI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/736/eng@2022-07-22 3

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