JOK v Republic (Criminal Appeal E031 of 2025) [2026] KEHC 243 (KLR) (21 January 2026) (Judgment)
Neutral citation:
[2026] KEHC 243 (KLR)
Republic of Kenya
Criminal Appeal E031 of 2025
S Mbungi, J
January 21, 2026
Between
JOK
Appellant
and
Republic
Respondent
(This is an appeal against the conviction and sentence passed by the Senior Resident Magistrate’s Court at Mumias in Sexual Offence Case No. E001 of 2024)
Judgment
1.The appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 26th February 2022 at Matungu Sub-county, Kakamega County, he intentionally and unlawfully caused his penis to penetrate the vagina of CKA, a girl aged 15 years and 7 months, who was to his knowledge his daughter.
2.The learned trial magistrate, delivered judgment on 6th March 2025, convicting the appellant on the main charge. On 20th March 2025, after considering a probation report, the court sentenced him to serve 15 years imprisonment.
3.Dissatisfied with the entire decision, the appellant filed a petition of appeal dated 25th March 2025, raising the following seven grounds of appeal:a.The trial magistrate failed to inform the appellant of his right to legal representation.b.The trial magistrate presided over an illegal trial contrary to Article 50(2)(f) of the Constitution and sections 213 and 310 of the Criminal Procedure Code (CPC).c.The conviction was based on inconsistent, contradictory, and fabricated medical evidence.d.The trial magistrate erroneously believed the hearsay evidence of PW2.e.The trial magistrate failed to consider that crucial witnesses were not called.f.The age of the victim was not conclusively proved due to alleged forgery in the birth certificate.g.The trial magistrate erroneously rejected the appellant’s defence of alibi and shifted the burden of proof.
4.The appellant prays that his appeal be allowed, his conviction quashed, sentence set aside, and he be set at liberty. Alternatively, he seeks a pronouncement that the sentence run from the date of his arrest.
5.The prosecution’s case rested on the testimonies of four witnesses and documentary evidence.
6.On 26th February 2022, around 00:20 hours, the appellant, who was living with the victim and his second wife, woke the victim and took her from their house to the nearby, unoccupied house of his younger brother. There, he defiled her. After the act, he threatened to kill her if she revealed the incident. On the same day, the traumatised victim reported the assault to her paternal uncle. This uncle then informed the victim’s mother (PW3) and maternal uncles, leading to the matter being reported at Koyonzo Police Station.
7.The victim was examined at a hospital on 2nd March 2022, approximately 30 hours post-incident. PW1, the clinical officer, testified and produced the P3 form, Post Rape Care form, and treatment notes. His findings were that the victim’s genitalia were reddened and inflamed, there was a muwid discharge, and the hymen was freshly broken. He concluded that penetration had occurred. He noted the victim had showered before the examination, which could affect certain findings, but the observed physical injuries remained consistent with recent sexual assault.
8.A voir dire examination was conducted, and the trial court found the minor (PW2) competent to give sworn evidence. She gave a clear, consistent, and graphic account of the defilement by her father, the location, and the subsequent threat. She also mentioned that her father had tried to make her swallow P2 pills after the incident, which she refused.
9.PW3 confirmed she was called by her brother on 26th February 2022 about the incident. She produced the victim’s original birth certificate, which showed the victim was born on 28th August 2006, making her 15 years and 7 months old at the time of the offence.
10.The investigating officer (PW4) testified that he recorded statements and visited the scene. He confirmed that the appellant fled immediately after learning of the police report and remained at large until his arrest on 2nd January 2024 in Busia, based on a tip-off. The victim was placed in a rescue centre in Kisumu for her safety for the entirety of 2022.
11.The pre-sentence report noted that the appellant was perceived as a violent man. His own brother, the paternal uncle to whom the victim first reported, expressed fear of reprisal, stating he pulled back from being a witness because the appellant was capable of doing something harmful.
12.The appellant gave an unsworn statement. His defence was a complete denial and an allegation of fabrication. He claimed the victim’s maternal uncle masterminded the charges due to a grudge. He presented an alibi, stating he was at work on 26th February 2022 and only disciplined the victim for keeping bad company and using drugs on 25th February 2022. He alleged the victim ran away and that he was framed. He denied absconding, claiming he went to Mombasa to look for work.
Analysis
13.This being an appeal, the duty of the court is to analyze a fresh evidence adduced at trial, re-evaluate and reconsider it so as to reach an independent determination bearing in mind the fact of not having seen or heard witnesses who testified. This was insisted in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, as the court stated that;
14.The appellant contends his right to a fair trial was violated because he was not informed of his right to legal representation and that the trial was illegal. Article 50(2)(g)(h) of the Constitution guarantees an accused person the right to choose, and be informed of the right to, legal representation.
15.The trial record shows that at the first mention on 8th January 2024, the charge was read to the appellant in Kiswahili, a language he understood. The record explicitly stated that the accused person was informed of his right to legal representation. He further said that he would act in person. The proceedings were conducted in English, with interpretation in Kiswahili. There is no indication the appellant ever raised any linguistic or procedural difficulty. The trial complied with Sections 213 and 310 of the CPC regarding the recording of proceedings.
16.These grounds are wholly unmerited and an afterthought. The record conclusively shows the appellant was properly informed of his rights and chose to represent himself.
17.The appellant challenges the medical evidence, the victim’s testimony, and the proof of age. On the proof of age, the prosecution produced the original birth certificate. PW3, the mother, testified to its authenticity. The appellant’s allegation of forgery elements was a bare, unsubstantiated claim made for the first time on appeal. He did not challenge the document during cross-examination nor provide any evidence to support his allegation. The trial court correctly held the age was proved beyond doubt.
18.On the medical evidence, the appellant claims the medical evidence was inconsistent because the victim had showered. PW1 explained the implications of the shower but stood by his objective findings of a fresh broken hymen, redness, inflammation, and discharge. These findings were consistent with recent penetration and corroborated the victim’s account. The 30 hour delay before examination was explained. The evidence was neither contradictory nor fabricated.
19.On the evidence of PW2 being considered as hearsay by the appellant, the victim gave sworn evidence after a successful voir dire. Her testimony was clear, consistent, and credible. The fact that she first reported to her uncle does not taint her own direct testimony. The rule against hearsay pertains to out of court statements offered for their truth. PW2’s in-court testimony was direct evidence. The trial court was alive to the need for caution but found her credible. I find no error. In the case of Kinyathi v Republic [1984] KLR the Court of Appeal had this to say of hearsay evidence:
20.The appellant argues that the paternal uncle and the boy he allegedly found with the victim were not called. The prosecution has discretion to decide which witnesses to call to prove its case. It is not required to call a superfluity of witnesses. The failure to call a witness is only fatal if the witness was essential to unfold the narrative or if evidence already adduced is rendered untrustworthy.
21.The evidence of the paternal uncle would have been corroborative but not essential. The core narrative was provided by the victim (PW2) and corroborated by medical evidence (PW1) and the mother (PW3). The probation report explained the uncle’s reluctance due to fear of the appellant. As for the alleged boy whom the appellant says had defiled the victim, was a figment of the appellant’s defence, unknown to the prosecution. The prosecution proved its case without these individuals.
22.On the defence of alibi and burden of proof, the appellant claims his alibi defence was wrongly rejected and the burden of proof shifted to him. The appellant’s alibi was vague and was first raised at trial, not at the earliest opportunity to the police. Regarding an alibi, the court in the case of Wagula v Republic [2024] KEHC 13663 (KLR), held that:
23.The standard of proof required is proof beyond reasonable doubt. In reference to this Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 stated:
24.More critically, the issue of alibi raised in the memorandum of appeal, it was demolished by overwhelming prosecution evidence:a.The victim’s clear and positive identification of her father as the perpetrator.b.The medical evidence corroborating her account of recent sexual activity.c.The appellant’s own conduct of immediately fleeing his home and remaining at large for over a year, which is a classic indicator of a guilty conscience.d.The probation report’s indication of his violent nature, lending credence to the threat he made to the victim.
25.The trial court did not shift the burden. It correctly found that the prosecution had placed the appellant at the scene through credible evidence, thereby disproving the alibi. Where the prosecution evidence is strong and credible, a trial court is entitled to reject an alibi defence. In the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), it was held that:
26.Having exhaustively re-evaluated the evidence, I find that the prosecution proved all the elements of the offence of incest under Section 20(1) of the Sexual Offences Act beyond any reasonable doubt.
27.The prosecution proved beyond reasonable doubt the following elements:a.Identification of the offenderb.Penetrationc.Age of the victimd.Relationship between the victim and the appellant
28.The appellant’s defence was a bare denial and an implausible allegation of family conspiracy, which was rightly rejected. None of the grounds of appeal have any merit.
29.Regarding sentence, the appellant was sentenced to 15 years imprisonment, which is the minimum sentence prescribed by law for this offence. The trial magistrate considered the probation report, which was not favourable to the appellant, and properly exercised discretion. The appeal against sentence is also without merit. His request for the sentence to run from the date of arrest considered; the15 year sentence shall be less Eight (8) months he spend in custody.
Orders
30.For the foregoing reasons, this appeal is entirely without merit and is hereby dismissed in its entirety.
31.The conviction of the appellant, Julius Omondi Kubende, for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 is hereby upheld.
32.The sentence of fifteen (15) years imprisonment imposed by the trial court is hereby affirmed. Eight (8) months shall be deducted from 15 years to cater for the period he was in custody.
33.Right of appeal 14 Days explained.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 21ST DAY OF JANUARY, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Angong’a/WekesaMs. Mwaniki for the Respondent present online.The Appellant present online.