D.W.G v Republic [2013] eKLR Magistrate, (L. Gicheha, SRM) returned a finding of guilty on the 2nd count and upon conviction, sentenced the appellant to 20 years imprisonment. Against that finding and sentence, the appellant filed a petition in the High Court. Khaminwa, J. in a terse judgment of four pages dismissed the appeal, upholding the trial court. Undeterred the appellant now comes before this Court on a second appeal, on the following condensed grounds contained in his “home-made” memorandum of appeal and in the written submissions:1. That the two courts below erred in failing to consider that the doctor’s evidence exonerated him. 2. That the High Court failed to analyze the evidence thereby failing to find that it was not safe to convict on such evidence. 3. That the appellants defence was not considered, and 4. That the sentence imposed was excessive and harsh. Mrs. Ouya for the respondent opposed the appeal and urged us not to disturb the decisions of the two courts below as the evidence was overwhelming. According to her, the only error committed by the two courts below was on the sentence of 20 years, which in her submission ought to have been life imprisonment in terms of Section 20 of the Sexual Offences Act. Being a second appeal for which this Court is enjoined by Section 361 of the Criminal Procedure Code to consider only matters of law. Accordingly, we only revisit the facts of the case here by way of background. The appellant who lived separately from his wife had the care of their two daughters L N W. (9 years) and M W W (7 years). L N M. recalled how on a particular night the appellant returned home drunk and undressed her while she was asleep. She woke up and ran out of the house to a Baba K, an uncle who in turn reported the incident to the children’s maternal grandmother. The learned trial magistrate considered this evidence and found, correctly in our view, that it did not meet the standard of proof required in a criminal trial, as there was no evidence that the appellant had done any act causing penetration with L N W. Consequently, the charges in count 1 were dismissed. L N W on her part gave the following testimony at the trial. “My father did me bad manners while I was asleep. He did me in my private parts where I urinate. I cried. He did me bad manners with his thing for urinating. He did me every day. The first time I cried. It was painful and I bled. ………………. My stomach still pains.” Although the doctor upon examination of the witness did not notice any injuries or tears in her genitalia, he found that her hymen was not intact, and as a consequence thereof concluded that that was evidence of penetration. The learned trial magistrate was persuaded from the foregoing evidence that the witness must have been defiled by the appellant. The learned judge of the High Court agreed with that conclusion. The offence of incest is committed under Section 20 (1) aforesaid when a male adult does an act which causes penetration with a female person who to his knowledge is his daughter, granddaughter, sister, mother, niece, aunt or grandmother. It is not in doubt that L N W was the appellant’s daughter. The doctor found that she had been penetrated and both courts below made factual finding that indeed the http://www.kenyalaw.org - Page 2/4