VOO v Republic (Criminal Appeal 8 of 2020)  KEHC 14676 (KLR) (3 November 2022) (Judgment)
Neutral citation:  KEHC 14676 (KLR)
Republic of Kenya
Criminal Appeal 8 of 2020
KW Kiarie, J
November 3, 2022
(From the original conviction and sentence in S.O.A case No.17 of 2017 of the Chief Magistrate’s Court at Homa Bay by Hon. R. B.N. Maloba–Principal Magistrate)
1.VOO, the appellant herein, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act No 3 of 2006.
2.The particulars of the offence were that on the October 12, 2017at [Particulars Withheld] village of Kochia Central location in Homa Bay County being a male person caused his penis to penetrate the vagina of BAO aged 6 years, a female person who was to his knowledge his daughter.
3.The appellant was sentenced to life imprisonment. He has appealed against both conviction and sentence. The appellant was in person. He raised the following grounds of appeal:a.That the trial court failed to observe that the prosecution case was full of contradictions.b.That the trial court failed to consider the age of the complainant was not established.c.That the trial court failed to observe that nothing linked the appellant medically to the alleged offence.d.That the trial court failed to observe the prosecution did not avail crucial witnesses in support of their case.e.That the trial magistrate erred in law and facts by dismissing the defence evidence.
4.The state opposed the appeal through Ochengo Justus, learned counsel. He argued that the prosecution proved its case to the required standards and that the appeal lacked merit.
5.This is a first appellate court. As expected, I have analysed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will therefore be guided by the celebrated case of Okeno v Republic  EA 32.
6.Section 20 (1) of the Sexual Offences Act provides: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.
7.The undisputed evidence is that the appellant is the father of BAO. This came from both the prosecution and the defence.
8.Whereas the prosecution adduced evidence that BAO was 6 years old, the appellant testified that she was approaching 7 years old. I therefore find that in order to satisfy section 20 (1) of the Sexual Offences Act, the age of the complainant was proved to the required standards.
9.The evidence of BAO (PW1) was that the appellant who was her father defiled her severally. He was in the habit of picking her from her bed and would take her to his bed. Prior to penetrating her genitalia, he would apply lotion on his penis.
10.In his defence the appellant contended that this was false.
11.EOO (PW6) testified that when PW1 who was her pupil reported to her about the defilement, the matter was reported to the police.
12.Francis Lazarus Olilo (PW3) is a clinical officer who examined the complainant on October 15, 2017. His findings were a broken hymen, a tear at six o’clock, redness in the vaginal wall which was evidence of friction or stress.
13.The proviso to section 124 of the Evidence Act states:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
14.The trial court rightly convicted on the basis of the evidence of the complainant for other than her contention which was consistent, the same was corroborated by the evidence of the clinical officer who examined her. The defence of the appellant amounted to mere denial.
15.The complainant was aged 6 years. The prescribed penalty is not mandatory. However, after considering the age of the child, I find that there is no justification to interfere with the sentence.
16.The upshot of the going is that the appeal lacks merit.
DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022.KIARIE WAWERU KIARIEJUDGE