Life imprisonment is not a mandatory sentence for the offence of incest.

EE v Republic

Criminal Appeal No 9 of 2015

(Formerly Kitale HCCRA 4 of 2015)

High Court at Lodwar

S Riechi, J

November 18, 2015

Reported by Beryl A Ikamari

Brief facts

The Appellant was charged with incest contrary to section 20 (1) of the Sexual Offences Act. Additionally, the Appellant faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The prosecution's case was that at 3.00 am on November 26, 2011, the Complainant was asleep at the Appellant's house when the Appellant woke her up, removed her clothes and had sexual intercourse with her. The Complainant then ran out of the Appellant's house went to her father's house where she informed him of what had happened. Her father went to look for the Appellant but the Appellant was only found when there was day light.

The Appellant's defence was that on the material day, he took goats to graze and went to Lodwar. He then proceeded to visit someone who he did not find but he remained there and slept there. He said that he went home on the next day and his mother gave him maize to sell and that at that time, he was arrested.

After a full trial, the trial Court convicted the Appellant of incest contrary to section 20(1) of the Sexual Offences Act and sentenced him to life imprisonment. The Appellant lodged an appeal against the conviction and sentence mainly on the basis that the evidence adduced at the trial Court was insufficient.

Issues

1. The nature of evidence required in order to prove the offence of incest under the Sexual Offences Act.
2. Whether there was a mandatory sentence for the offence of incest.

Criminal Law-incest-ingredients of the offence of incest-penetration of genital organs, identification of the offender and proof of the existence of a relationship to which the offence of incest was applicable-Sexual Offences Act, No 3 of 2006, sections 20(1) & 22; Evidence Act, (Cap 80), section 77.

Statutes-interpretation of statutory provisions-sentencing for the offence of incest under the Sexual Offences Act-whether the section 20 of the Sexual Offences Act provided for a mandatory sentence of life imprisonment for the offence of incest- Sexual Offences Act, No 3 of 2006, sections 20(1) & 22.

Sexual Offences Act, No 3 of 2006, sections 20(1);

20. (1) 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 an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Held

1. As the first Appellate Court, the High Court's duty was to assess and weigh the evidence adduced and to make its own findings and conclusions. In doing so, the High Court was to give an allowance due to the fact that the trial Court had the advantage of hearing and seeing the witnesses.
2. Sections 20(1) and 22 of the Sexual Offences Act provide for the nature of relationships concerning which the offence of incest was applicable. The Complainant's evidence and the evidence of the Complainant's father showed that the Complainant was the Appellant's niece. Despite the fact that the Appellant denied that he had any relationship with the complainant, the evidence on record satisfactorily showed that the Appellant was the brother to the Complainant's father and an uncle to the Complainant.
3. There was a relationship between the Appellant and the Complainant. If there was any sexual intercourse between them, it would be between an uncle and a niece and it would amount to incest under section 20(1) of the Sexual Offences Act.
4. Penetration was an important ingredient in the offence of defilement. Under section 2 of the Sexual Offences Act, the term penetration had the meaning of the partial or complete insertion of the genital organ of a person in the genital organ of another person.
5. The evidence of the Complainant and that of the Clinical Officer established that there was penetration of the Complainant's sexual organ. The Complainant's father also testified that she reported to him that she had been defiled. The evidence on penetration was consistent.
6. Identification of the person who defiled the Complainant was another important ingredient in the offence of defilement. The evidence indicated that the people who were in the Appellant's house at the material time were the Complainant and the Appellant. The Complainant knew the Appellant well and there was no mistake when the Appellant identified the Complainant as the person who defiled her.
7. Section 77 of the Evidence Act made provisions allowing for public documents made by experts including medical practitioners to be admissible in evidence. The prosecution at the trial Court made an application for a Clinical Officer, other than the one who prepared the p3 form to produce the p3 form and it was allowed. The Clinical Officer who testified in Court stated that he was familiar with the signature and handwriting of the Clinical Officer who prepared the p3 form and he confirmed that the form was duly filled by that Clinical Officer.
8. An assessment and re-evaluation of the evidence revealed that the trial Court properly considered the evidence adduced. The trial Court correctly arrived at the conclusion that the Appellant, the Complainant's uncle, penetrated the Complainant's genital organs and committed the offence of incest.
9. Under section 20(1) of the Sexual Offences Act, where a person was convicted of the offence of incest if the victim was under the age 18 years, that person was liable to imprisonment for life. However, the provision did not make life imprisonment the mandatory punishment. It only made life imprisonment the maximum sentence and provided for 10 years imprisonment as the minimum sentence.
10. The High Court could interfere with a sentence issued by a subordinate Court if the High Court was satisfied that the sentence imposed was manifestly excessive and that the trial Court ignored important matters or circumstances which ought to have been considered or that the sentence was wrong in principle.
11. The Appellant was sentenced to life imprisonment which was the maximum sentence for the offence of incest. The Appellant was a first offender and he had a wife and child who depended on him. The trial Court applied the wrong principle in sentencing by finding that in the offence of incest involving a Complainant below the age of 18 years, the mandatory sentence was life imprisonment. The correct position was that the minimum sentence for the offence was 10 years imprisonment and the maximum sentence was life imprisonment. The fact that the Appellant was a first offender was an important consideration. The life imprisonment sentence was to be reduced to 20 years imprisonment.

Appeal partly allowed. (Conviction for the offence of incest upheld & sentence reduced from life imprisonment to 20 years imprisonment.)