3.PW1 VAO, a social worker at [particulars withheld] house infant rescue centre, was on 13/6/2019 informed through the phone by the children officer Mr. Mbengi of an infant who was born of a mentally challenged mother. She and her children went to Meru level 5 hospital to pick the child and took her to Githongo Law Courts, where a Care and Protection file was opened. Thereafter, they took the child, who was about one month old, to Nanyuki while the child’s mother, JK, the complainant herein, went home with her father AM. In liaison with the chief of Kiria location, they made arrangements for the complainant to go for age assessment, mental assessment and family planning. On 3/9/2019 as the tests were being carried out at Meru level 5 hospital, it was discovered that the complainant was pregnant, but she did not know the age of the pregnancy. The complainant, who was found to be mentally unfit, was assessed to be aged between 14 to 15 years old. The complainant was taken to Missionaries of Charity Nairobi for placement. When PW1 visited the complainant’s home, she found that the complainant was living with her father AM and there were no other people living in their compound. There were neighbours living about 500 meters away and there was no fence in the complainant’s compound. The complainant was unable to communicate because of speech problems.
4.On cross examination, she stated that when she visited AM’s home, she found the complainant alone in the house. The infant was born in June 2019 and the appellant was arrested because a DNA was done. The complainant’s father had been arrested at that time and the complainant delivered her baby at home and was taken to the hospital. The complainant, who was raised by her father, conceived again when the infant was 3 months old. They did not know the age of the complainant when she went back home and they believed she was 18 years old.
5.On re-examination, she stated that a DNA was conducted between the complainant, AM and the infant they rescued and she did not know the results thereof.
6.PW2 Paul Muriuki Thingwa, the area assistant chief of Karindine sub- location, was on 15/3/2019 informed that there was an underage, mentally challenged girl who was pregnant. He summoned the suspects who were brothers (the father of the girl and the appellant herein) to his office. On arrival, they both denied impregnating the girl. The appellant would feed and clothe the girl as her father was a casual laborer at Nkubu town. The girl’s father lived alone with no wife while the appellant was their immediate neighbour and he lived with his wife. He was reliably informed that the appellant was seen in a farm having sexual intercourse with the child. He reported the matter to Kariene police station and the girl’s father was arrested. The girl’s father was released after a paternity test confirmed that the appellant was the infant’s father. He later learnt that the appellant was arrested in November 2019. He met the complainant even before the incident and the complainant went to live with her paternal grandmother prior to her death. The complainant was physically and mentally challenged and she could not talk. He identified the appellant in the dock and stated that he had no issue with him.
7.On cross examination, he stated that the child was living with her father and in 2004, the complainant’s mother abandoned her with her father. He did not know whether the appellant, who had a wife, worked. The appellant and the complainant’s father lived within a proximity of 10 meters away, and the appellant would take advantage and go to the complainant’s father’s house when he was away at work since the child was being left alone. He did not know when the appellant was arrested. In his office were the appellant, AM and area Manager Karani Mugambi but Karani was not called to testify. AM admitted in his office that he had impregnated the complainant but DNA analysis showed that the appellant was the father. He did not know how long the girl had been pregnant when he made the report at the station. He was acting on intelligence report that the appellant and AM were defiling the child and he had been informed that the appellant was defiling the child when the father was away at work. He neither sent anyone to take the complainant to the hospital nor asked for the prenatal reports.
8.PW3 AM1, a farmer, recalled going home at Karindine in the month of November 2018 where she met the complainant who was pregnant. The complainant was her niece and AM was her brother. She went to tell AM about the pregnancy and to request him to take the complainant to the clinic. She also informed Paul Kariuki about the pregnancy who said he had heard such rumours. In the month of April 2019, AM came to her house to inform her that the complainant had given birth. She went to AM’s house to help the complainant and her child. She asked a neigbour’s daughter to take the complainant’s child to the hospital. She visited the child at Meru level 5 hospital and when AM later visited the child, he informed her that the child had been taken to Nanyuki. The complainant did not stay in the hospital for long but the child did. She received a phone call from the children officer Nanyuki to go to AM’s home since she was the person who knew about the complainant. She accompanied them to Meru level 5 where the tests done on the complainant revealed that she was pregnant again. She did not know the father of the complainant’s first child but the complainant lived with her father. AM had neighbours namely Domian Bundi, Joseph Gitonga, Simon Kiogora and Domiano Mawera (the appellant herein and AM’s brother). She did not know why the appellant was arrested. The appellant lived near AM’s homestead and they shared a boundary. There was a live fence that was about half a meter long. The complainant was physically challenged as she did not talk and needed assistance in everything she did.
9.On cross examination, she stated that she found the complainant pregnant when she came home in the month of September 2018. There were many people in the neighbourhood and the complainant was raised by her father since birth. The complainant lived with her grandmother until 2014 when she went to live with her father. She did not know who the father of the complainant’s child was. She recorded her statement in the month of September 2019 and the complainant delivered her baby at home and not in hospital. The appellant’s mother died in February and her statement was recorded while the appellant’s mother was still alive but unwell. The appellant was married but she did not know where he worked. The complainant was then aged 16 years but she did not know her date of birth.
10.PW4 Peter Mbogori, a clinician at Githongo Hospital, testified that the complainant, a mentally retarded 14 year old girl, was brought in by a police officer with history of incest. The complainant had already delivered a 5 month’s old child and she was pregnant again. On examination, no injuries were noted on her genitalia but she had a broken hymen and per vaginal discharge. On further investigation, no spermatozoa were noted but she had infections of trichomanias, there was presence of a lot of pus cells and a pregnancy test was positive. He concluded that the child had an STD and was also pregnant. The complainant was put on antibiotics to treat the infection and he opined that the complainant had been defiled. He produced the treatment notes, the P3 and PRC forms, lab request form for the complainant, lab request for HM, lab request for AM, lab request for the appellant and DNA results dated 25/10/2019 as exhibits in court. They requested for DNA test for HM, a 5 month’s old child and the report indicated that there was a 99.9% possibility that the appellant was the child’s biological father. The DNA test which was done on 25/10/2019 excluded AM as the biological father.
11.On cross examination, he stated that they took blood samples from the appellant which were taken to Nairobi for analysis and he was the one who filled the P3 form. He did not test the appellant to see if he had the STD which the complainant had. Paternity of the 5 month’s old child proved that the appellant was the father of the child. From the history given, the complainant was not leaving her home and there were allegations that it was a case of incest.
12.PW5 Felister Kinoti of Kariene Police station, was on 10/9/2019 at around 8.00 am at the station when the assistant chief of Kirindine one Mr. Muriuki came to report that a minor who was mentally and physically challenged had been defiled and impregnated. It was alleged that the culprits were the complainant’s father AM and the appellant herein. The complainant delivered a baby on the night of 19th April 2019 while at home. The complainant and her child were taken to Meru level 5 for medical checkup but the child was subsequently taken by officials from Neema house infant rescue center through the children officer Mr. Mbengi. In September 2019, PW1 visited the complainant at home in order to take her to the hospital for family planning. When the pregnancy test was carried out, it surprisingly turned out to be positive. The chief then arrested AM but when the DNA test was carried out, it revealed that the appellant was the infant’s child and he was arrested. She prepared the exhibit memo forms showing that DNA blood samples were forwarded to the Government Chemist for the appellant, the complainant and HM and another specimen for AM, the complainant and HM. Inspector Samwel Nderitu, the OCS Kariene wrote an order to the medical superintendent Githongo hospital requesting the hospital to draw blood for DNA analysis, and by strength of that letter, they arrested the appellant and took him to the hospital for that purpose. She produced the complainant’s mental and age assessment reports, birth notification for HM whose date of birth was 19/4/2019, the exhibit memo dated 25/9/2019 for the appellant and HM, the exhibit memo form for AM, the complainant and HM dated 25/9/2019 and a letter from OCS Kariene to medical superintendent Githongo dated 3/10/2019 as exhibits in court. She was unknown to the appellant prior to this case.
13.On cross examination, she stated that her investigations and the DNA results revealed that the appellant was the perpetrator. The chief came to report after the officials from Neema found the complainant pregnant again after delivery of the first baby. The complainant lived with her father and his case was withdrawn after the DNA results. She worked with an informer namely AM1 and the appellant’s sister had also testified in court. AM recorded his statement but she was advised that he would not testify. She denied that the appellant had been framed and insisted that the complainant was aged between 14 to 15 years old. She learnt that the complainant was going to school at one time but she stopped for reasons which were unknown to her. The complainant lived with her father since 2004 after her mother abandoned her. On re-examination, she stated that the appellant was not framed.
14.In his sworn defence, DW1, the appellant told the court that he lived in Kirindine and he worked in a quarry. The complainant was born in his family and she was left behind with her brother M in the care of his mother MN. They were deserted by the mother around 2001 and his mother raised them up till 2016. When his mother started ailing and was admitted at Chogoria hospital, the complainant was left in the care of his brother SB. In July 2016, AM took custody of the complainant from SB. In August 2018, the complainant started looking like she was pregnant and his relatives wondered who might have impregnated her. AM admitted in March 2019 in the office of the sub chief, in his presence and that of two area managers, namely Samuel and Karani, that he had impregnated the child since he was her care giver who was even tasked with changing her clothes. The sub chief instructed AM to take the complainant for antenatal clinic and the complainant delivered a baby at around 20/4/2019 around mid-night in the house. As he was in his house with his wife PN, he heard AM calling for help and he went to assist. He found AM standing inside the house while holding a new born baby in his hands while the complainant was standing in front of AM. He went and called his wife and mother who came to cut the umbilical cord, after which they went back to sleep. The following day, AM requested a neighbour’s daughter to take the baby to the hospital. The complainant and AM returned from the hospital without the baby. Three months down the road, the complainant was taken to the hospital where a pregnancy test confirmed that she was pregnant again. AM was arrested and escorted to the police station. After three months, he was arrested while he was at home. He was taken to the police station, then to the hospital for blood sample taking and later released. He was then rearrested on 16/11/2019 as he was leaving his work place and arraigned in court on 18/11/2019. He accused the investigating officer together with the chief for colluding with AM in order to frame him. He was not called by the OCS to get a person who he knew to witness the DNA sampling. He always had a land dispute with AM as SB and himself wanted that land. His brother SB was also arrested and he was currently in prison. AM had even threatened him.
15.On cross examination, he stated that the complainant was his niece, a daughter to his brother and that she delivered a baby boy namely HM. The complainant resided with her father AM after her mother died. When AM was away, the complainant would go to his elder brother’s home namely SK to play with other children. He denied either taking advantage of AM’s absence to defile the complainant or defiling her in a banana plantation. AM, SB, SK and JG were all his brothers. SK was also summoned by the assistant chief but he could not come due to lack of permission from his work place. He agreed to his blood samples being taken but he was unaware that blood samples were also drawn from AM. He did not know to date the purpose of the blood samples. AM did not frame his other 3 brothers because he inherited the portion of land AM was previously occupying and AM was his immediate neighbour. He had an issue with Paul Muriuki because Julius Muthomi (deceased) was brewing traditional liquor. The blood which was drawn from him by a doctor, was left at the hospital. His brother SB was arrested after complaints from his first wife DK and AM had a relationship with his first wife. Although they reported to the sub chief about the land issue he had with AM, they did not have any meeting to resolve it. He did not have any document to show that he had a land issue and he never made any report to the police on the threats by AM. DW2 was the wife to his brother SB and she could not tell his whereabouts or what he was doing in her absence.
16.DW2 PG, a resident of Karindine and a farmer, stated that she knew the appellant who was her brother. After she got married to SB in 2008, she found the complainant living with her grandmother MN. After MN started ailing, she took both the complainant and MN in her custody. When AM started insulting them since he had sold land, they handed back the complainant to her father. AM was the one who was defiling his daughter for two years. The complainant and AM were living together until they found out that the complainant was pregnant, and she delivered a baby boy. AM was called by the assistant chief and given a warning. Two or three months down the line, the complainant was pregnant again and AM was arrested. Three or four months down the line, AM was released from custody and the appellant was arrested. The case was a frame up because she had never found the appellant defiling the child. The child was living with AM who was bathing and defiling her. A parcel of land was sold by her deceased mother in law which was the cause of this case since her husband was also in prison. The child was AM’s because he was living with the complainant.
17.During cross examination, she stated that her husband was arrested with defiling the appellant’s child. AM and the complainant were not involved in any way in her husband’s case. She had not found the appellant defiling the child. The appellant worked in a quarry and left at 8.00 am and he was her neighbour. AM did not work and he was always at home. If AM was to leave, he would leave the child at their homestead, the appellant’s home and his other brother’s homestead. She did not recall the name of the complainant’s child and she was not always in the company of the appellant. She was informed by Dennis that AM was defiling the child but she never made any report about the same to the station because of AM’s insolent behavior. Sometimes she left home to go for other duties and she was never accompanied by the appellant whenever she left. She could not ascertain what the appellant did in her absence.
Analysis and Determination
20.It is the duty of this court as the first appellate court to re-appraise, review and re-evaluate the evidence afresh with a view of drawing its own independent conclusions and findings, bearing in mind that it did not have the advantage of seeing the witnesses testify. See Okeno v R  EA 32.
21.Having considered all the grounds raised by the appellant and the rival submissions, it appears to me that they can be collapsed into three, namely, whether prosecution proved all the ingredients of the offence of incest beyond reasonable doubt; whether there were some key witnesses who were not called to testify; and whether the trial court considered the appellant’s defence.
23.The record is clear that the complainant did not testify as she had a mental and physical disability, for which there was a psychiatrist report dated 3/9/2019 showing that the complainant suffered from neurodevelopmental disorder of intellectual disability and her speech was incoherent.
24.The prosecutor informed the court that they would be calling other witnesses except for the complainant since she was not in a position to communicate, and the appellant did not object to that application at all. In this case, the trial court did not deem it fit to appoint an intermediary to give evidence to assist the complainant in line with the Article 50 (7) of the Constitution and descriptive provisions of Section 2 of the Sexual Offences Act.
25.This case came into light after the complainant started showing signs of pregnancy, ultimately giving birth and a DNA test was done which linked the pregnancy to the appellant.
26.In a case of incest, the prosecution must prove age of the complainant, knowledge that the person is a relative of prohibited degree and proof of penetration.
27.The law is clear that in a criminal trial, the prosecution bears the burden of proving its case beyond reasonable doubt. In Stephen Nguli Mulili v Republic  eKLR, the Court of Appeal stated:
28.On age, an age assessment report for the complainant dated 3/9/2019 was produced as PExh 2 showing that the complainant was approximated to be aged between 14-15 years.
29.On knowledge that the person is a relative, PW3 told the court that, “JK is my niece. Her father AM is my brother….AM has neighbours DB, JG, SK and DM (accused) one AM’s brother. I do not know D other name but he is my biological brother.” The appellant admitted in his defence on cross examination that, “JK is my niece a daughter to my brother…JK father is called A M.”
Identification of the Appellant as assailant
31.The appellant contended that the DNA analysis was done un-procedurally as it was done in his absence. PW5 testified that, “I prepared the exhibit memo forms showing the DNA blood samples were forwarded to the Government chemist for PM, JK and HM and another specimen for AM, JK and HM. Inspector Samwel Nderitu the OCS Kariene wrote an order to the medical superintendent Githongo hospital requesting the hospital to draw blood for DNA analysis. By the strength of that letter, we arrested the accused to take him to hospital for that purpose.”
32.The appellant admitted in his defence that, “I agreed to my blood samples being drawn….It is the doctor who drew blood from me at the hospital. The blood was left at the hospital.”
33.It is clear that all the blood samples were taken from the hospital by a doctor. Those blood samples were then sent by PW5 to the government chemist for analysis. The police are empowered by Section 122A of the Penal Code which states that, “A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.”
34.DNA sampling procedure is defined in section 2 of the Penal Code to mean a procedure, carried out by a medical practitioner, consisting of; “the taking of a sample of saliva or a sample by buccal swab; the taking of a sample of blood; the taking of a sample of hair from the head or underarm; or the taking of a sample from a fingernail or toenail or from under the nail, for the purpose of performing a test or analysis upon the sample in order to confirm or disprove a supposition concerning the identity of the person who committed a particular crime.”
35.In this case, there was no eye witness to show that the appellant had indeed committed the offence. However, the DNA report and the trial court’s observation of the complainant’s demeanor in court sufficiently pointed to the appellant as the perpetrator of the crime. The appellate court is required to give deference to the observations of the trial court which saw and heard the prosecution and defence witnesses. Se Okeno v R (supra).
36.The trial court observed as follows, “I have looked at the subject who is in court. I note that she responds to her name by looking at me when I call out her name. She seems uneasy and does not look at the accused person. She avoids eye contact with him and screams when she accidentally lays her eyes on him. She physically turns her back not to look at him.”