JK v Republic

was dissatised with the verdict and appealed to the High Court, which dismissed the appeal and armed both the conviction and the sentence. 4. The decision of the High Court precipitated the appeal now before this Court. Before addressing the grounds, we will summarise the evidence presented in the trial. PW1, Dr Samuel Mutegi, a senior medical ocer at Githongo Sub-County Hospital, testied in relation to the P3 form for PW2 that she was taken to the facility a day after allegedly being sexually assaulted by her father. Although PW2 was initially scared and refused examination, she eventually cooperated, revealing a perforated hymenal membrane, a blunt injury and discolouration on the labia minora. A high vaginal swab revealed red blood cells and pus cells, but no spermatozoa were found. PW1 was administered post-exposure prophylaxis for HIV prevention, antibiotics, and painkillers. PW1 lled the P3 form on 16th November 2018. 5. PW2, VK gave unsworn testimony. She testied that she knew the appellant as her father, though they did not live with him. She told the court that the appellant did something bad to her. He called her while she was playing with her brother and other children outside. She had put on shorts and a dress when they were playing outside. The appellant undressed her, placed her on the bed and lay on top of her, while he lowered his trousers up to his thighs and put his 'susu' inside her vagina. PW2 described ‘susu’ by pointing at her vagina, amid tears. 6. She stated further that her mother went into the house and found PW2 standing on the bed and the appellant also standing but not on the bed. Her mother did not say anything, but PW2 later told her what transpired. 7. PW3, IN, who was PW2’s mother, testied that on 15th November 2018, she was washing clothes around 12:30 pm outside their house. The appellant, who was PW2’s father, was inside the house. Her children EM, VK, MK, and FK were outside the house playing. After nishing washing clothes, she went into the house to take back soap and found the appellant and PW2 undressed. She asked the appellant what he was doing with the child while naked, and he told her he was not doing anything. PW3 asked him again as she had found both of them naked. PW3 then asked her child, who told her that her father had undressed her and lowered his trousers up to his thighs. PW3 took her child and called the area manager, who, in turn, called the area chief, and they took the child to Githongo Hospital for treatment; thereafter, the matter was reported at the Githongo Police Post. 8. PW3 further testied that the child told her that the appellant stood in the doorway and signalled her to go into the house. He then removed her clothes by pulling down PW2’s shorts on one side and then lay her down on a baby cot as the appellant was standing. PW3 conrmed that the appellant was her husband and the biological father of PW2. 9. PW4, PC Muthoni Kioko testied that on 15th November 2018 at around 4:00 pm, PW2 went to the police station accompanied by her mother (PW3), who reported that PW2 was playing outside the house with her brother while she washed clothes, when the appellant called PW2 to the house. He removed her pair of shorts and proceeded to dele her. PW3 found the appellant in the act when she entered the house, and upon seeing her, he was shocked and stopped. She asked the appellant what he was doing, but he did not respond; instead, he put on his clothes and went outside. PW3 then took her child to the Police Station, where she reported the incident. They were issued with a note to go to the hospital, and PW4 escorted them to Githongo Sub- County Hospital for check-up and treatment. She had the P3 form lled, statements were recorded, and the appellant was arrested and charged. PW2 was taken for an age assessment to determine her age, estimated at 4-5 years. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1861/eng@2026-09-25 2

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10. When put to his defence, DW1, the appellant, elected to give sworn evidence and stated that he understood the charges but maintained they were a frame-up by his wife, PW3, following family disagreements. He recalled having a quarrel with his wife on the night of 16th November 2018, because he refused her demands for conjugal rights out of concern over contracting diseases, given that she frequently stayed out late and had another man bring shopping to the house. 11. The appellant stated further that on the material day, he left for work around 8:30 am, and upon returning at 8:00 pm, he discovered that his wife and children had moved to an adjacent rental room. He slept in their previous room and went to work the following morning, the 17th November 2018. On returning that evening, he could not nd them. He changed clothes and went to a hotel at Kithirune market to watch the news. While at the hotel around 7:00 pm, Murithi, the sub-area leader of Kithirune, who was familiar with the couple's past squabbles, arrived with about 10 people. Murithi grabbed the appellant by his belt and led him towards the rental houses, but stopped short of the wife's room to make a phone call. Kinyua was paraded around Kithirune market, and when he screamed to ask what the issue was, Murithi assaulted him and told him to be quiet. His phone and money were conscated, and he was forced into a red vehicle near the tarmac before being escorted to Githongo Police Post, where he was held in cells until being arraigned on 19th November. The appellant expressed shock at the charges and stated he did not cross-examine his child, PW2, because he felt it was disrespectful to discuss intercourse with her. 12. The appellant lodged the instant appeal by ling an undated supplementary memorandum of appeal on grounds that the learned Judge erred in law by nding that penetration was proved; by failing to nd that the medical evidence adduced did not corroborate the charge and by failing to consider the sentence imposed was harsh and excessive. 13. This matter was heard on the Court’s Virtual Platform by way of written submissions. The appellant appeared in person, while prosecuting counsel Miss Mengo appeared for the respondent. In his undated submissions, the appellant argued that PW2’s testimony that the appellant "inserted his 'susu' into mine" is highly ambiguous and lacks the specicity required to establish denitive penile vaginal penetration, especially given her age and the inherent challenges in her testimony. Furthermore, he contended that the medical evidence provided by PW1 did not adequately corroborate the charge. While the medical report noted recent trauma, including a perforated hymen, a blunt injury to the labia minora, and red blood cells in a high vaginal swab, the appellant argued that these ndings only indicate general trauma that could stem from non-sexual incidents or rough play. He submitted that the absence of spermatozoa and the lack of explicit conrmation that the injuries resulted from penile penetration render the prosecution’s case incomplete and legally insucient to sustain a conviction. 14. On the sentence, he argued that the trial court failed to genuinely consider his mitigation that he has children, lives in a rental house, and his mother is deceased. He faulted the trial court for treating the statutory maximum penalty as mandatory. In support of this contention, he relied on PMM v Republic (Criminal Appeal 24 of 2017) [2018] KEHC 2082 (KLR), where the court referred to the case of Opoya v Uganda [1967] EA 752, where it was held that statutory language stating an oender is "liable to" life imprisonment confers judicial discretion to mete out a term between ten years and life, rather than imposing a mandatory sentence. 15. While acknowledging the recent Supreme Court precedents Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR); Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), and Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), which all established that this Court lacks jurisdiction to directly alter sentences, the appellant noted that the apex court does not bar the High https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1861/eng@2026-09-25 3

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Court from reviewing sentences or prevent this Court from remitting matters back to the High Court. It was urged that this Court ought to remit this case to the High Court for resentencing, to allow a proper evaluation of the appellant’s mitigation and the imposition of a denite, lenient sentence that aligns with human dignity and the objectives of rehabilitation. 16. In opposing the appeal, Learned State Counsel led submissions dated 20th May 2025. In response to the rst ground concerning an alleged lack of tangible evidence, counsel asserted that the evidence against the appellant is overwhelming and meets the three core legal requirements of incest: penetration, the identity/relationship of the perpetrator, and the age of the victim. To establish penetration, counsel pointed to the direct testimony of PW2, which was corroborated by PW3, who found both the appellant and PW2 together naked in the house, and the medical evidence conrming a perforated hymen and physical trauma to the labia minora. The identity and relationship requirements were established without dispute during the trial, as the appellant is the victim's father. The victim's age was determined to be between 4 and 5 years old and was veried by the oral testimony of PW3 and a medical age assessment report produced as an exhibit, which aligns with established case law allowing medical assessments, parental testimony, and ocial documents to prove a minor's age. Reliance was placed on Edwin Nyambogo Onsongo v Republic [2016] eKLR, Joseph Kieti Seet v Republic [2014] eKLR and Francis Omuroni v Uganda Criminal Appeal No. 2 of 2000. 17. On whether the prosecution proved its case to the required standard, counsel rmly rejected the claim that the prosecution failed to prove its case to the required standard. Counsel contended that the High Court explicitly weighed the prosecution’s case against the defence and properly concluded that the evidence met the criminal standard of proof beyond reasonable doubt. 18. Addressing ground three, counsel highlights that the High Court did evaluate the appellant’s defence but correctly found it to be highly improbable and a deliberate attempt to evade justice. Specically, the appellant entirely avoided addressing the actual date of the incident (15th November 2018) and instead focused his narrative on the events of the following day. Concluding that the trial court properly evaluated the evidence and reached a correct decision, counsel prayed that this Court dismiss the appeal and leave the life imprisonment sentence undisturbed. 19. This being a second appeal, our mandate is limited to matters of law only by dint of section 361 of the Criminal Procedure Code. This Court in the case of Karingo & 2 Others v Republic [1982] KLR 213, expounds on the Court’s mandate as follows: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could nd as it did (Reuben Karari c/o Karanja vs. R (1956) 17 EACA 146).” 20. 21. Having carefully considered the record of appeal, the grounds of appeal, the submissions by both parties and the law, the following issues arise for determination: i. Whether the oence of incest was proved beyond reasonable doubt; ii. Whether the appellant’s defence was properly considered; iii. Whether there is any basis for interfering with the conviction and sentence. The essential ingredients of the oence of incest under section 20(1) of the Act are: proof of penetration; proof that the complainant was related to the oender within the prohibited degrees of consanguinity; and age of the victim. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1861/eng@2026-09-25 4

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22. The evidence on record established that PW2 was the biological daughter of the appellant. PW3, the complainant’s mother, expressly testied that the appellant was her husband and the biological father of PW2. That evidence was not controverted. 23. In her testimony, PW2 was clear that the appellant called her into the house, undressed her, laid her on the bed and inserted his “susu” into her vagina. Her testimony was corroborated by PW3, who found the appellant and the complainant undressed inside the house. PW3 immediately asked the child what had happened and the child stated that her father had undressed her. This Court in Omumbo v Republic (Criminal Appeal 80 of 2008) [2008] KECA 315 (KLR), held that in sexual oence cases, the evidence of a child victim can nd a conviction even without corroboration, provided the trial court believes the child and records reasons for that belief pursuant to the proviso to section 124 of the Evidence Act. 24. Likewise, in Wanyonyi v Republic (Criminal Appeal 312 of 2018) [2019] KECA 679 (KLR), this Court cited the case of AML v Republic [2012] eKLR, where the Court held that the fact of rape or delement is not proved by way of a DNA test only but by way of any other probative evidence. Also, in Ali v Republic [2006] KECA 156 (KLR), this Court held that the commission of a sexual oence can be properly corroborated by circumstantial evidence. It follows that the absence of medical evidence to support the fact of penetration is not decisive, as the fact of penetration can be proved by the oral evidence of a victim or by circumstantial evidence. The complainant's evidence, together with the surrounding circumstances and medical evidence, may be sucient to prove the oence beyond reasonable doubt. 25. The evidence of PW1, PW2 and PW3 was consistent, cogent and mutually corroborative. PW2 testied that the appellant inserted his “susu” into her vagina. PW1, the clinical ocer, examined PW2 and found a perforated hymen, blunt trauma and discolouration on the labia minora together with red blood cells and pus cells on the vaginal swab. In George Owiti Raya v Republic [2015] KECA 266 (KLR), this Court emphasised that it did not matter whether the complainant's hymen was found intact; it was sucient that there was evidence of partial penetration. 26. Similarly, in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), this Court held that absence of spermatozoa is not fatal to the prosecution case where other medical ndings and the complainant’s evidence prove penetration. We nd no merit in the appellant’s contention that penetration was not proved and are of the considered view that the medical ndings by PW1 corroborated the testimony of PW2 and clearly established penetration. It is also notable that the appellant did not explain or put to task the evidence of PW2 & PW3 that he was found naked and having undressed PW2. 27. In his defence, the appellant claimed that PW3 fabricated the case following domestic disagreements. Both the trial court and the rst appellate court considered and rejected that defence. We see no reason to interfere with those ndings of fact by the two courts below. In any event, the appellant did not back the assertion with evidence. The appellant’s defence amounted to a mere denial. In Cosmas Nzuki Valiki v Republic [2020] KECA 339 (KLR), this Court held that a mere denial which does not dislodge the prosecution evidence cannot avail an accused person an acquittal. Similarly, in Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), this Court stated that a trial court must consider the defence but is entitled to reject it if it does not raise reasonable doubt. 28. As regards sentence, the oence involved delement of a child aged between four and ve years by her own father. One found guilty of this oence is liable to life imprisonment under section 20(1) of the Act. The sentence meted out therefore is lawful. In Silas Mwiti Gikunda v Republic [2007] KECA 307 (KLR), this Court quoted Wanjema v Republic [1971] EA 493, where the Court held that an https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1861/eng@2026-09-25 5

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appellate court will not interfere with a sentence unless it is illegal, founded on wrong principles, or manifestly excessive. No such circumstances have been demonstrated in this appeal. 29. In the result, we arm both the conviction and the sentence, and dismiss the appeal in its entirety for lack of merit. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. K. M’INOTI ................... JUDGE OF APPEAL ALI-ARONI ................... JUDGE OF APPEAL M. GACHOKA, C.Arb, FCIArb ................... 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/2026/1861/eng@2026-09-25 6

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