REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E096 OF 2025
NYANSOHO EMMANUEL CHACHA ….……………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………….……. RESPONDENT
( Being an appeal from the Judgment and Conviction of Hon. Naomy Wairimu, Senior Principal Magistrate, dated 15 th September, 2025 at the Magistrates Court at Migori, Sexual Offence Case No. E043 of 2024 )
JUDGMENT
Introduction and Background
1. The Appellant was charged before the Rongo subordinate court with the offence Defilement contrary to section 8(3) of the Sexual Offence Act, No. 3 of 2006 . The particulars of the offence are that on the 1 st July 2024 at Sayote Area, Migori Township of Migori County, he unlawfully and intentionally caused his penis to penetrate the vagina of EAO, a child aged 16 years.
2. The Appellant faced an alternative charge of an Indecent Act with a minor contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on the 1 st of July 2024, at Sayote Area of Migori Township in Migori County, he unlawfully and intentionally touched the buttocks, breasts and vagina of EAO, a child aged 16 years. He denied both charges.
3. The trial proceeded and the state called five witnesses and at the close of the proceedings, the trial court made a ruling finding the Appellant had a case to answer and placed him on his defence. The Appellant opted to give an unsworn statement. He called three witnesses. At the close of the trial, and after evaluating the evidence, the trial court found the Appellant guilty of the offence of committing an Indecent Act with a minor and convicted him accordingly. He was then sentenced to 10 year’s imprisonment. This is the judgment the Appellant seeks that this court to review and reconsider.
Analysis and Determination.
4. This is a first appeal. The duty of an appellate court on first appeal is to independently evaluate the evidence and the law and make a determination on whether the trial court correctly evaluated the evidence and the law and made the right determination. The principles are well laid out and the determination in Okeno vs Republic [1972] EA . 32 is relevant in that aspect.
5. Before delving into the evidence adduced before the trail court, the accused person has raised the issue of the charge sheet being defective for failure to disclose the year when the Sexual Offences Act was enacted. I have looked at the charge sheet. The charge is indicated as “ Defilement of a girl contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act ”. Does the failure to indicate the year of enactment render the charge sheet fatally defective? I do not deem so.
6. The Appellant has relied on the provisions of section 134 of the Criminal Procedure Code (CPC ). The section provides as follows:
“ Offence to be specified in charge or information with necessary particulars Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged ”.
7. The section is clear on what the charge sheet should contain. The Appellant can clearly discern from the charge sheet what the offence is, the time the offence is alleged to have been committed, where it was committed, against whom and by whom. The Appellant had the witness statements prior to the commencement of the trial. I also note from the proceedings that the trial court appraised him on his right to legal representation and he opted to represent himself.
8. In a nutshell, the submission about the violation of his rights from the time of arraignment to take plea to the time he was convicted and sentenced are not well grounded. Further, the omission by the DPP to indicate the year when the Act was enacted did not occasion any prejudice to the Appellant to warrant the complete mistrial of the case. I am thus not persuaded by the submissions of the Appellant therein and dismiss them accordingly.
9. The victim EAO, PW1, testified that she was born on the 9 th December 2007. She stated that on the material day, she was sent to the shop by her elder brother. While at the shop that is operated by her cousin, someone across the road called her and when she went to find out what it was, the person, the Appellant herein told her he wanted to talk to her. She went and picked the items she had bought and began to go home. On the way, she found the Appellant standing by the road. She told the Appellant she was in a hurry and in any case she had been involved in another incident with another man and she did not want to upset her father again.
10. The Appellant informed her he wanted to hug her tight but she asked him how that was possible where they were. She leaned on the Appellants motorcycle and the Appellant was standing in front of her. A man passed by near them and the victim pushed the Appellant away. The Appellants phone rang and she saw the man who had passed by come and they, the victim and Appellant were taken to the victim’s home. The Appellant was apparently assaulted by boda boda guys who rushed to the victim’s home.
11. The victim stated the Appellant wanted to have sex with her and had removed her panty but they did not have sex. They were both taken to the police station and also Migori District Hospital.
12. In cross examination, the victim stated that they did not stand by the roadside but move about 10 meters from the road into the trees. She added that the Appellant wanted to force himself on her and she did not scream. She left when the Appellants phone rang. She added that the Appellant had no pant on and was assaulted and his clothes torn by the assailants.
13. PW2, Paul Odhiambo Ogutu, a taxi driver testified that he received a call from a strange number asked to rush home and he found the victim, his daughter and the Appellant seated on the ground. He informed the police and as the situation was tense with the boda boda threatening to lynch the Appellant. He was rescued together with the victim and taken to the hospital and later to the police station. The Appellant is not someone known to him. He added he spanked his daughter when he got home as he was upset by her.
14. PW3, Tobias Otieno Ojwang, stated in his evidence that a boda boda operator based at Kadika stage. He saw a motorcycle parked by the roadside. He went to check and found the Appellant with a young girl and asked the Appellant what he was doing with the young girl. He alleged when he found the two, they were both without pants. He restated in cross examination that the Appellants zip was open. He also alleged the Appellant threatened him when they met after the Appellant had been charged. He denied assaulting the Appellant and did not know who assaulted him.
15. PW4, the clinical officer stated he attended both the victim and the Appellant on the 1 st July 2024. No injuries were witnessed on the victim but the hymen was broken. She had no vaginal bleeding or discharge. She stated in her history that she had prior carnal knowledge with various partners the last being in 2023. The Appellant had injuries to the face, right thumb and right gluteal area. The injuries were from an assault by a mob.
16. PW5, the Investigating Officer undertook the investigations herein and stated that he took the statements of the victim, the father and the Appellant. He stated that the victim stated that the Appellant carried her on the motor cycle and later took her to a bush. He asked to hug her but she refused. She later agreed and the Appellant hugged her, touched her breasts and also inserted huis middle ginger into her vagina.
17. In the Appellants unsworn evidence, he stated that he went to fuel his motor cycle and then went to fix his motorcycle at Sayote junction. He asked the victim to assist him lift the motorcycle and then PW3 came carrying two sacks of cement asked the Appellant to give way. He obliged.PW3 then returned and asked what he was doing with the girl. He stated the girl was assisting him to lift the motor cycle. PW3 made a call and asked for Kshs. 400.00. He obliged. Then PW3 spoke to the victim in dholuo. Later they went to the girl’s home and PW3 alleged to the crowd that gathered that he had found the Appellant having sex with the victim in the bush. Attempts by the Appellants brother to have them go to the scene were met with violence. He added that the police asked for Kshs. 120,000.00 to end the case and he declined the offer.
18. DW2, Johannes Chacha, a neighbour of the Appellant stated that he saw three men at Sayote and a girl. On inquiring, he was told that three men who had defiled the girl and escaped previously. They suspected the Appellant was one of them. He encouraged the Appellant to go to the victim’s home to sort out the matter. He added that PW3 is one the people who assaulted the Appellant.
19. DW3, Johannes Ghati Mwita, a boda boda rider stated that he is the chairman of boda boda riders at Kumposasa stage opposite Lifecare. He was informed of the assault on the Appellant and on reaching where the Appellant was, he found he had been assaulted. He stated that he found confusion with since people accusing the Appellant and others asking for the Appellant to be allowed to explain what had happened. In addition, the police allegedly later asked for Kshs. 120,000.00 to settle the matter but he declined.
20. I have perused the record and the judgment of the trial court. As the trial court correctly found, there was no evidence of defilement as she acquitted the Appellant. There was no evidence of penetration, and thus the offence of defilement could not be sustained. To convict for defilement, the state needed to prove that the victim was a minor. The age of the victim is not in dispute. The identity of the Appellant is also not in dispute. Neither the evidence of the victim nor that of the clinical officer pointed to penetration and thus defilement of the victim. It was proper for the trial court to acquit the Appellant on the charge of defilement.
21. Was the charge of Indecent Act proved? I have gleaned carefully through the proceedings. At no point does the complainant state that the Appellant touched her buttocks, breasts or vagina. The closest it comes is during examination in chief where she states that the Appellant wanted them to have sex. The complainant does not equivocally state that the Appellant touched her breasts, buttock and vagina. This being a serious offence, it is important that the said evidence was to come clearly and directly from the complainant.
22. PW2 and PW3 who were present immediately the Appellant was apprehended did not state so in their evidence. It only comes out in the evidence of PW5, the investigating officer. I do not deem it safe to sustain a conviction where the evidence in support was not equivocal.
23. The import is that I will set aside the conviction against the Appellant on the alternative charge of committing an Indecent Act with a child under section 11(1) of the Sexual Offences Act, No. 3 of 2006 and substitute the same with an acquittal under section 215 of the CPC.
24. The Appellant is therefore set free unless otherwise lawfully held .
Dated, signed and delivered virtually via Microsoft Teams this 25 th Day of June 2026.
In the presence of:
No appearance for the parties.
HCCRA NO. E096 OF 2024 NYANSOHO EMMANUEL CHAHCH VS REPUBLIC JUDGMENT Pg. 6
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E096 OF 2025
NYANSOHO EMMANUEL CHACHA ….……………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………….……. RESPONDENT
( Being an appeal from the Judgment and Conviction of Hon. Naomy Wairimu, Senior Principal Magistrate, dated 15 th September, 2025 at the Magistrates Court at Migori, Sexual Offence Case No. E043 of 2024 )
JUDGMENT
Introduction and Background
1. The Appellant was charged before the Rongo subordinate court with the offence Defilement contrary to section 8(3) of the Sexual Offence Act, No. 3 of 2006 . The particulars of the offence are that on the 1 st July 2024 at Sayote Area, Migori Township of Migori County, he unlawfully and intentionally caused his penis to penetrate the vagina of EAO, a child aged 16 years.
2. The Appellant faced an alternative charge of an Indecent Act with a minor contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on the 1 st of July 2024, at Sayote Area of Migori Township in Migori County, he unlawfully and intentionally touched the buttocks, breasts and vagina of EAO, a child aged 16 years. He denied both charges.
3. The trial proceeded and the state called five witnesses and at the close of the proceedings, the trial court made a ruling finding the Appellant had a case to answer and placed him on his defence. The Appellant opted to give an unsworn statement. He called three witnesses. At the close of the trial, and after evaluating the evidence, the trial court found the Appellant guilty of the offence of committing an Indecent Act with a minor and convicted him accordingly. He was then sentenced to 10 year’s imprisonment. This is the judgment the Appellant seeks that this court to review and reconsider.
Analysis and Determination.
4. This is a first appeal. The duty of an appellate court on first appeal is to independently evaluate the evidence and the law and make a determination on whether the trial court correctly evaluated the evidence and the law and made the right determination. The principles are well laid out and the determination in Okeno vs Republic [1972] EA . 32 is relevant in that aspect.
5. Before delving into the evidence adduced before the trail court, the accused person has raised the issue of the charge sheet being defective for failure to disclose the year when the Sexual Offences Act was enacted. I have looked at the charge sheet. The charge is indicated as “ Defilement of a girl contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act ”. Does the failure to indicate the year of enactment render the charge sheet fatally defective? I do not deem so.
6. The Appellant has relied on the provisions of section 134 of the Criminal Procedure Code (CPC ). The section provides as follows:
“ Offence to be specified in charge or information with necessary particulars Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged ”.
7. The section is clear on what the charge sheet should contain. The Appellant can clearly discern from the charge sheet what the offence is, the time the offence is alleged to have been committed, where it was committed, against whom and by whom. The Appellant had the witness statements prior to the commencement of the trial. I also note from the proceedings that the trial court appraised him on his right to legal representation and he opted to represent himself.
8. In a nutshell, the submission about the violation of his rights from the time of arraignment to take plea to the time he was convicted and sentenced are not well grounded. Further, the omission by the DPP to indicate the year when the Act was enacted did not occasion any prejudice to the Appellant to warrant the complete mistrial of the case. I am thus not persuaded by the submissions of the Appellant therein and dismiss them accordingly.
9. The victim EAO, PW1, testified that she was born on the 9 th December 2007. She stated that on the material day, she was sent to the shop by her elder brother. While at the shop that is operated by her cousin, someone across the road called her and when she went to find out what it was, the person, the Appellant herein told her he wanted to talk to her. She went and picked the items she had bought and began to go home. On the way, she found the Appellant standing by the road. She told the Appellant she was in a hurry and in any case she had been involved in another incident with another man and she did not want to upset her father again.
10. The Appellant informed her he wanted to hug her tight but she asked him how that was possible where they were. She leaned on the Appellants motorcycle and the Appellant was standing in front of her. A man passed by near them and the victim pushed the Appellant away. The Appellants phone rang and she saw the man who had passed by come and they, the victim and Appellant were taken to the victim’s home. The Appellant was apparently assaulted by boda boda guys who rushed to the victim’s home.
11. The victim stated the Appellant wanted to have sex with her and had removed her panty but they did not have sex. They were both taken to the police station and also Migori District Hospital.
12. In cross examination, the victim stated that they did not stand by the roadside but move about 10 meters from the road into the trees. She added that the Appellant wanted to force himself on her and she did not scream. She left when the Appellants phone rang. She added that the Appellant had no pant on and was assaulted and his clothes torn by the assailants.
13. PW2, Paul Odhiambo Ogutu, a taxi driver testified that he received a call from a strange number asked to rush home and he found the victim, his daughter and the Appellant seated on the ground. He informed the police and as the situation was tense with the boda boda threatening to lynch the Appellant. He was rescued together with the victim and taken to the hospital and later to the police station. The Appellant is not someone known to him. He added he spanked his daughter when he got home as he was upset by her.
14. PW3, Tobias Otieno Ojwang, stated in his evidence that a boda boda operator based at Kadika stage. He saw a motorcycle parked by the roadside. He went to check and found the Appellant with a young girl and asked the Appellant what he was doing with the young girl. He alleged when he found the two, they were both without pants. He restated in cross examination that the Appellants zip was open. He also alleged the Appellant threatened him when they met after the Appellant had been charged. He denied assaulting the Appellant and did not know who assaulted him.
15. PW4, the clinical officer stated he attended both the victim and the Appellant on the 1 st July 2024. No injuries were witnessed on the victim but the hymen was broken. She had no vaginal bleeding or discharge. She stated in her history that she had prior carnal knowledge with various partners the last being in 2023. The Appellant had injuries to the face, right thumb and right gluteal area. The injuries were from an assault by a mob.
16. PW5, the Investigating Officer undertook the investigations herein and stated that he took the statements of the victim, the father and the Appellant. He stated that the victim stated that the Appellant carried her on the motor cycle and later took her to a bush. He asked to hug her but she refused. She later agreed and the Appellant hugged her, touched her breasts and also inserted huis middle ginger into her vagina.
17. In the Appellants unsworn evidence, he stated that he went to fuel his motor cycle and then went to fix his motorcycle at Sayote junction. He asked the victim to assist him lift the motorcycle and then PW3 came carrying two sacks of cement asked the Appellant to give way. He obliged.PW3 then returned and asked what he was doing with the girl. He stated the girl was assisting him to lift the motor cycle. PW3 made a call and asked for Kshs. 400.00. He obliged. Then PW3 spoke to the victim in dholuo. Later they went to the girl’s home and PW3 alleged to the crowd that gathered that he had found the Appellant having sex with the victim in the bush. Attempts by the Appellants brother to have them go to the scene were met with violence. He added that the police asked for Kshs. 120,000.00 to end the case and he declined the offer.
18. DW2, Johannes Chacha, a neighbour of the Appellant stated that he saw three men at Sayote and a girl. On inquiring, he was told that three men who had defiled the girl and escaped previously. They suspected the Appellant was one of them. He encouraged the Appellant to go to the victim’s home to sort out the matter. He added that PW3 is one the people who assaulted the Appellant.
19. DW3, Johannes Ghati Mwita, a boda boda rider stated that he is the chairman of boda boda riders at Kumposasa stage opposite Lifecare. He was informed of the assault on the Appellant and on reaching where the Appellant was, he found he had been assaulted. He stated that he found confusion with since people accusing the Appellant and others asking for the Appellant to be allowed to explain what had happened. In addition, the police allegedly later asked for Kshs. 120,000.00 to settle the matter but he declined.
20. I have perused the record and the judgment of the trial court. As the trial court correctly found, there was no evidence of defilement as she acquitted the Appellant. There was no evidence of penetration, and thus the offence of defilement could not be sustained. To convict for defilement, the state needed to prove that the victim was a minor. The age of the victim is not in dispute. The identity of the Appellant is also not in dispute. Neither the evidence of the victim nor that of the clinical officer pointed to penetration and thus defilement of the victim. It was proper for the trial court to acquit the Appellant on the charge of defilement.
21. Was the charge of Indecent Act proved? I have gleaned carefully through the proceedings. At no point does the complainant state that the Appellant touched her buttocks, breasts or vagina. The closest it comes is during examination in chief where she states that the Appellant wanted them to have sex. The complainant does not equivocally state that the Appellant touched her breasts, buttock and vagina. This being a serious offence, it is important that the said evidence was to come clearly and directly from the complainant.
22. PW2 and PW3 who were present immediately the Appellant was apprehended did not state so in their evidence. It only comes out in the evidence of PW5, the investigating officer. I do not deem it safe to sustain a conviction where the evidence in support was not equivocal.
23. The import is that I will set aside the conviction against the Appellant on the alternative charge of committing an Indecent Act with a child under section 11(1) of the Sexual Offences Act, No. 3 of 2006 and substitute the same with an acquittal under section 215 of the CPC.
24. The Appellant is therefore set free unless otherwise lawfully held .
Dated, signed and delivered virtually via Microsoft Teams this 25 th Day of June 2026.
In the presence of:
No appearance for the parties.
HCCRA NO. E096 OF 2024 NYANSOHO EMMANUEL CHAHCH VS REPUBLIC JUDGMENT Pg. 6