https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8478

Nyanchoka v Republic (Criminal Appeal E142 of 2025) [2026] KEHC 8478 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8478 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E142 of 2025 DR Kavedza, J June 18, 2026 Between Geoffrey Amenya Nyanchoka Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 25th September 2025 by C.M Njagi at Kibera Chief Magistrate’s Court, Sexual Offences Case No. E145 of 2024 Republic vs Geoffrey Amenya Nyanchoka) Judgment 1.The appellant was charged and with four counts of offences. Count I, defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No.3 of 2006; Count II Sexual Assault Contrary to section 5(1)(a)(i) of the Sexual Offences Act, No. 3 of 2006; Count III and IV, Child Pornography contrary to section 24(1)(b) of the Computer Misuse and Cyber Crime Act No. 5 of 2018 and Count IV,Pornography contrary to section 24(1)(d) of the Computer Misuse and Cyber Crime Act No. 5 of 2018. After a full trial he was convicted in Counts I, III and IV and sentenced to serve forty years, a fine of Kshs. 5 million in default to serve 5 years imprisonment and 5 million in default to serve 5 years imprisonment respectively. In addition he was ordered to pay restitution to the victims of Kshs. 2, million which was to take precedent over the fine. The sentences were ordered to run consecutively. 2.Being aggrieved, he filed an appeal challenging his conviction. In his petition of appeal dated 16th October 2025, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution called eight witnesses in support of their case. PW1 (M.K.H.)The minor, born on 8th April 2012 and residing in Raila slums, stated that she knew the appellant as a person who assisted her father in selling water. On 13th November 2024, she went to the appellant’s house to collect soap. She entered using her key, whereupon the appellant followed her inside and locked the door. She alleged that the appellant then had sexual intercourse with her without her consent, recorded the act on his phone, and threatened to rape her again if she disclosed the incident. 5.She further stated that the appellant had previously touched her breasts and urged her to leave school so that he could marry her. She described feeling pain in her private parts and reported that she was threatened with a knife. The minor took the phone used for recording and, after informing her father, received medical treatment. She positively identified the appellant in court. 6.PW 2 RH, the father of the minor confirmed her date of birth as 8th April 2012. He knew the appellant as someone who had assisted him in selling water. He stated that he was informed the appellant had defiled his daughter. The appellant later approached him to apologise for wronging him. Upon questioning his daughter, she disclosed that the appellant had raped her. He took her for medical examination, produced a copy of her birth certificate, and identified the medical documents. 7.PW 3 and 5 Susan Murage, the clinical officer from Coptic Hospital examined the minor on 3rd December 2024. She produced the Post-Rape Care (PRC) form, treatment notes, and P3 form. She noted that the minor had been defiled, presented with a fishy odour, an irregular hymenal margin, an old tag indicative of penetration, and that the hymen was not intact. The minor was treated and discharged. 8.PW4 Joseph Wesonga the Nyumba Kumi representative stated that he found the minor in the appellant’s house and inquired how she came to be in possession of the appellant’s phone. She indicated it was from the appellant’s house. When the appellant was questioned, he asked him to forget the matter. The witness observed that the appellant had deleted content from the phone but pictures and a video of the appellant and the minor engaging in sexual intercourse remained. He reported the matter to the police, handed over the phone, and the appellant was arrested. 9.PW6 No. 92781 Senior Sergeant Peris Wakio the investigating officer received the defilement complaint. She interviewed the minor and her father. When the appellant being spotted, officers arrested him. She took possession of the phone, which was produced, and an exhibit memo. She recorded witness statements, interrogated the appellant, and preferred charges. 10.PW 7 No. 117375 PC Samson Kiplagat the officer, together with PC Alex Kasaiye, assisted in the arrest of the appellant at the direction of PW6. They were shown the suspect by Joseph Wesonga. 11.PW8 No. 122070 PC Kipchumba Alphonse, the DCI cybercrime laboratory officer examined the Nokia phone (IMEI 355321875474307). He recovered a video recording dated 13th November 2024 depicting defilement. He produced the video on a DVD, his report dated 11th April 2025, and the certificate for electronic evidence. 12.The prosecution closed its case. The court found a prima facie case established and placed the appellant on his defence. 13.In his unsworn defence, the appellant stated that on the material day he had been drinking with his friend Vincent. After Vincent left, the appellant paid Kshs. 1,600 for Vincent’s unpaid drinks and received Vincent’s phone as collateral. He returned home intoxicated. He claimed that the minor and Vincent forced sexual intercourse involving the minor. Upon discovering what had occurred, he sought forgiveness from the minor’s parents, who forgave him and the matter ended. He alleged Vincent harboured a grudge and continued pursuing the case. He further stated that the minor’s age was not proved and her clothing was not produced in court. 14.The appellant was convicted and sentenced accordingly. 15.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 16.To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 17.Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus:8.Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 18.On the element of age, the complainant (PW1) was born on 8th April 2012, as confirmed by the birth certificate produced by PW2. At the material time of the alleged offence on 13th November 2024, the complainant was 12 years of age. Consequently, the age ingredient under Section 8(3) of the Sexual Offences Act has been proved beyond reasonable doubt. 19.On whether there was penetration, the court relies upon the clear and detailed testimony of PW1. Pursuant to Section 2 of the Sexual Offences Act, penetration is defined as any partial or complete insertion. PW1 gave a resolute account that the appellant followed her into his house, locked the door, and had sexual intercourse with her without her consent. She stated that the appellant threatened her with a knife, recorded the act on his phone, and had previously touched her breasts and proposed marriage. PW1 identified the appellant clearly as the person known to her and her father through his assistance in selling water. Her account was corroborated by the medical evidence of PW5, which confirmed the hymen was not intact with an old tag indicative of penetration, together with the video recording recovered from the appellant’s phone. PW1 further took the phone and reported the matter, leading to medical treatment. 20.The appellant’s defence claimed that his friend Vincent was responsible and that the minor and Vincent forced the act while he was drunk. However, in this case, the testimony of the complainant was credible, consistent, and supported by medical evidence and the video recording, the court further finds that the defence failed to raise any reasonable doubt. 21.Upon careful consideration of the whole evidence, the trial magistrate found PW1’s testimony to be credible, detailed, coherent, and consistent throughout. It was not shaken on cross-examination. All elements of the offence of defilement contrary to Section 8(3) of the Sexual Offences Act were proved beyond reasonable doubt, and the conviction was proper and is affirmed. 22.In counts III and IV, the appellant was convicted for the offence of ``Child Pornography contrary to section 24(1)(b) of the Computer Misuse and Cyber Crime Act No. 5 of 2018 and Count IV, Pornography contrary to section 24(1)(d) of the Computer Misuse and Cyber Crime Act No. 5 of 2018. 23.Section 24(1)(b) and (d) of the Computer Misuse and Cybercrimes Act, No. 5 of 2018 provides as follows:“(1)A person who, intentionally -(a)publishes child pornography through a computer system;(b)produces child pornography for the purpose of its publication through a computer system;(c)downloads, distributes, transmits, disseminates, circulates, delivers, exhibits, lends for gain, exchanges, barters, sells or offers for sale, lets on hire or offers to let on hire, offers in another way, or make available in any way from a telecommunications apparatus pornography; or(d)possesses child pornography in a computer system or on a computer data storage medium, commits an offence and is liable, on conviction, to a fine not exceeding twenty million or to imprisonment for a term not exceeding twenty five years, or both.” 24.In respect of Counts III and IV, the prosecution adduced cogent evidence that the appellant intentionally produced child pornography. PW1 testified that the appellant recorded the sexual act on his phone while having non-consensual sexual intercourse with her. PW4 recovered the phone from the minor, observed the video depicting the appellant and the minor engaging in sexual intercourse, and noted that the appellant had attempted to delete the content but the video remained. 25.PW8, a DCI cybercrime expert, forensically examined the Nokia phone (IMEI 355321875474307) and recovered a video recording dated 13th November 2024 showing the defilement. He produced the DVD containing the video, his report, and the certificate for electronic evidence. PW1 was born on 8th April 2012 as confirmed by the birth certificate, making her 12 years old at the material time and therefore a child under the Act. The video clearly depicts a child engaged in sexual activity. 26.The evidence establishes that the appellant intentionally produced child pornography on his phone for the purpose of its publication through a computer system and was found in possession of the same. PW1’s credible testimony, the medical evidence, and the unchallenged forensic exhibits prove the elements of both offences beyond reasonable doubt. The appellant’s defence of denial and blaming Vincent raised no reasonable doubt. The trial court properly convicted the appellant on Counts III and IV. The convictions are supported by credible, consistent and corroborated evidence and are hereby affirmed. 27.The appellant was sentenced to serve forty years, a fine of Kshs. 5 million in default to serve 5 years imprisonment and 5 million in default to serve 5 years imprisonment respectively. In addition he was ordered to pay restitution to the victims of Kshs. 2 million which was to take precedent over the fine. 28.During sentencing, the court considered the aggravating circumstances and exercised discretion. In the premises, I see no reason to interfere. 29.In the end, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026D. KAVEDZAJUDGE