1. Vincent Ouma Mikwaya, the appellant herein, was convicted of the offence of obstruction of the due process of justice contrary to section 117 (b) of the Penal Code.
2. The particulars of the offence are that on the 21st day of March 2022, at Dede area, Awendo sub-county within Migori County, he dissuaded I.A.O. to withdraw [sic] criminal case number MCSO/003/2022 from appearing and giving evidence.
3. The appellant was sentenced to serve four years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial court erred in both law and fact by failing to comply with article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law.
c) That the trial court erred in both law and fact by failing to consider my defence and mitigation before imposing a harsh and excessive sentence in the circumstances.
4. The state did not file any grounds of opposition or submissions.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, having neither seen nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. Section 117 (b) of the Penal Code provides:
Any person who—
b) in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or
7. For the prosecution to establish an offence under this section, the following must be demonstrated:
a) The individual in question is legally required to attend as a witness, either due to legal obligation or a court summons.
b) That the accused deliberately discouraged, obstructed, or stopped the witness from testifying using threats, bribery, intimidation, harassment, false information, or similar means.
8. The first thing to note is that the particulars of the charge are ambiguous. It was stated that “he dissuaded I.A.O. to withdraw [sic] criminal case number MCSO/003/2022 from appearing and giving evidence.”
9. The Concise Oxford English Dictionary defines the word dissuade as follows:
(dissuade someone from) Persuade someone not to take (a course of action)
10. When the details and the charge conflict, the accused is entitled to an acquittal. This principle was confirmed in the case of John Brown Shilenje vs the Republic, High Court (NBI), Criminal Appeal No. 181 of 1981 (unreported). The reasoning is straightforward: the accused must clearly understand the charge against him and the alleged violation of the law.
11. The key prosecution witness in this case was Vincent Nyambori (PW1). His evidence was largely inadmissible hearsay. PW2's evidence did not implicate the appellant; it implicated the child's mother.
12. Based on the available evidence, I conclude that the learned trial magistrate lacked sufficient proof to convict the appellant. The conviction is therefore quashed and the sentence set aside.
13. The appellant is set free unless otherwise lawfully detained.
Delivered and signed at Migori on this 23rd day of February 2026
2. The particulars of the offence are that on the 21st day of March 2022, at Dede area, Awendo sub-county within Migori County, he dissuaded I.A.O. to withdraw [sic] criminal case number MCSO/003/2022 from appearing and giving evidence.
3. The appellant was sentenced to serve four years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial court erred in both law and fact by failing to comply with article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law.
c) That the trial court erred in both law and fact by failing to consider my defence and mitigation before imposing a harsh and excessive sentence in the circumstances.
4. The state did not file any grounds of opposition or submissions.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, having neither seen nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. Section 117 (b) of the Penal Code provides:
Any person who—
b) in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or
7. For the prosecution to establish an offence under this section, the following must be demonstrated:
a) The individual in question is legally required to attend as a witness, either due to legal obligation or a court summons.
b) That the accused deliberately discouraged, obstructed, or stopped the witness from testifying using threats, bribery, intimidation, harassment, false information, or similar means.
8. The first thing to note is that the particulars of the charge are ambiguous. It was stated that “he dissuaded I.A.O. to withdraw [sic] criminal case number MCSO/003/2022 from appearing and giving evidence.”
9. The Concise Oxford English Dictionary defines the word dissuade as follows:
(dissuade someone from) Persuade someone not to take (a course of action)
10. When the details and the charge conflict, the accused is entitled to an acquittal. This principle was confirmed in the case of John Brown Shilenje vs the Republic, High Court (NBI), Criminal Appeal No. 181 of 1981 (unreported). The reasoning is straightforward: the accused must clearly understand the charge against him and the alleged violation of the law.
11. The key prosecution witness in this case was Vincent Nyambori (PW1). His evidence was largely inadmissible hearsay. PW2's evidence did not implicate the appellant; it implicated the child's mother.
12. Based on the available evidence, I conclude that the learned trial magistrate lacked sufficient proof to convict the appellant. The conviction is therefore quashed and the sentence set aside.
13. The appellant is set free unless otherwise lawfully detained.
Delivered and signed at Migori on this 23rd day of February 2026