A man cannot commit the offence of incest with a male relative under the Sexual Offences Act

JKM v Republic

Criminal Appeal No 54 of 2018

High Court at Nyahururu

RPV Wendo, J

July 30, 2020

Reported by Sharon Sang & Kakai Toili

Criminal law – sexual offences – incest - incest by a male person –elements constituting the offence of incest by a male person – whether a man could commit the offence of incest on a male relative - Sexual Offences Act,(No. 3 of 2006), section 20 and 22.

Criminal law – sexual offences – defilement and incest – where the charge of incest by a male person was substituted with that of defilement – where the accused had defiled a 9 year old child – where both offences bore a similar sentence which was life imprisonment – whether it would be prejudicial to substitute the offence of incest by a male person to the offence of defilement under the Sexual Offences Act – Sexual Offences Act, (No. 3 of 2006), section 8 and 20.

Jurisdiction – jurisdiction of the High Court – appellate jurisdiction - role of the High Court as an appellate court.

Brief facts

The appellant had been convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act (the Act) by the trial court. The particulars of the charge were that the appellant intentionally caused his genital organs to penetrate the genital organs of his son (the complainant) a child aged 9 years. In the alternative, the appellant was charged with the offence of indecent act with a child, contrary to section 11(A) of the Act in that he intentionally caused his genital organs to come into contact with the genital organs of the complainant. Upon conviction, the appellant was sentenced to serve 20 years imprisonment. The appellant was aggrieved by the judgment of the trial court and thus filed the instant appeal. The appellant prayed that the conviction be quashed and the sentence set aside.

Issues

1. What were the elements that constituted the offence of incest by a male person?
2. Whether the offence of incest by a male person could be established if committed on a male relative under the Sexual Offences Act.
3. Whether it would be prejudicial to substitute the offence of incest by a male person to the offence of defilement under the Sexual Offences Act which bore similar sentence if convicted.

Relevant provisions of law

Sexual Offences Act, No 2 of 2006

Section 2

“indecent act” means an unlawful intentional act which causes—

1. any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
2. exposure or display of any pornographic material to any person against his or her will;

“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

Section 20 – Incest by male persons

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:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

Section 22 – Test of relationship

1. In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.
2. …
3. An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
4. In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children Act (No 8 of 2001)

Held

1. The court had a duty to exhaustively examine all the evidence tendered in the trial court, evaluate and analyze it and arrive at its own findings and conclusions.  However, the court had to make allowance for the fact that it neither saw nor heard the witnesses testify whereas the trial court had the opportunity to, and to assess the witnesses’ demeanor.
2. The offence of incest by a male person was created by section 20(1) of the Sexual Offences Act. To establish a case under section 20, the prosecution had to prove the elements of the offence which were that there had to be;

1. an indecent act or an act that caused penetration; and
2. the victim had to be a female person who was related to the perpetrator in the degrees set out in section 22 of the Act.

3. There was overwhelming evidence on record that the complainant was aged about 8 years old. The complainant was a child of tender age and had undergone a voire dire examination. PW6 who examined the complainant, assessed his age at 8 years, at the time he was in nursery school.
4. There was no evidence on record as to suggest why the complainant, a child of tender age, could have framed the appellant with such a serious offence and given such candid details of the incident. The complainant was a truthful witness, he gave his evidence on oath and was subjected to cross-examination and his testimony was not shaken. The appellant was therefore the perpetrator of the offence that caused anal penetration of the complainant.
5. The complainant was a male person and did not fall within the category listed in section 20(1) of the Act.  Under section 20(1), a male person committed the incest with a female relative.  There was no provision in the Act where a male person was deemed to commit incest with male relative. An offence of incest had therefore not been disclosed as no such offence existed under section 20(1).
6. The evidence on record disclosed an offence of defilement under section 8(1) as read with section 8(2) of the Act. The trial court erred in convicting and sentencing the appellant under section 20(1) of the Act. The appellant was thus guilty of the offence of defilement contrary to section 8(1) as read with section (2) of the Act.
7. The appellant would not suffer any prejudice for being found guilty for the offence of defilement because the sentence under section 20 of the Sexual Offences Act was similar to the sentence under section 8(1) and (2) which was, life imprisonment.
8. The appellant behaved like a beast. The complainant was a young boy of tender age, his own son upon whom he inflicted serious injuries by his bestial acts. Instead of being his protector, he was the molester until the young boy had to run for his life and find refuge in the bathroom.  The appellant did not deserve mercy.
9. The Rules Committee needed to reconsider section 20(1) of the Sexual Offences Act, whether a man could commit incest on a male relative.

Appeal partly allowed; appellant sentenced to serve 30 years imprisonment under section 8(2) of the Sexual Offences Act which sentence would run from the date the appellant was sentenced.