https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12071

Nyanchoka v Republic (Criminal Appeal E133 of 2023) [2026] KEHC 12071 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 12071 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E133 of 2023 SC Chirchir, J July 23, 2026 Between Simon Makori Nyanchoka Appellant and Republic Respondent (Arising from the Judgment of Hon. M.Mutegi(SPM) delivered on 4th December 2023 in Kangema, MCSO Case No. E015 of 2023.) Judgment 1.The Appellant was charged before the lower court with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. (The Act). The particular of the offence were that on 7th June 2023 at Gacharageine sub-location, Mathioya sub-county within Murang’a county, intentionally and unlawfully caused his penis to penetrate the vagina of J.W whom he knew was an imbecile 2.He also faced an alternative charge of committing an indecent act with an adult contrary to Section 11 (a) of the same Act. 3.After a full trial, the learned trial magistrate found the Appellant guilty, of the offence of rape contrary to Section 3 (1) (a) of the Act. He was sentenced to serve twelve (12) years in prison. 4.Aggrieved by both the conviction and sentence, the Appellant moved this Court by way of a Petition of Appeal dated 15th December 2023. He later filed amended grounds, which he listed as follows;1.That, the learned trial magistrate erred in law and fact by failing to consider that the charge sheet was fatally defective, having been framed under Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006, whereas the evidence adduced was aligned with Section 146 of the Penal Code. This inconsistency rendered the charge incurably defective and was not amenable to correction under Section 182 of the Criminal Procedure Code.2.That, the learned trial magistrate erred in law and fact by misapprehending the provisions and import of Section 31 of the Sexual Offences Act, thereby rendering the testimony of the intermediary unreliable and of negligible probative value.3.That, the learned trial magistrate erred in law and fact by failing to appreciate that the offence of defilement, as charged, was not proved beyond reasonable doubt, and further, that the alternative offence of rape could not be sustained in the absence of the testimony of the complainant, who was the key prosecution witness. 5.The Appeal was heard through written submissions. Appellant’s submissions 6.The Appellant argues that the charge sheet was fatally defective. Relying on Section 134 of the Criminal Procedure Code and the decision in Yongo v R (1983) eKLR, he contends that since the complainant was 22 years old, she was not a child and thus a charge under Section 8 of the Actwas not tenable. 7.The Appellant maintains that the defect was fatal because it caused substantive prejudice. He cites The Court of Appeal decision in Benard Ombuna v Republic eKLR, where it was held that:“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence” 8.He argues the proper charge should have been under Section 146 of the Penal Code, and the trial court's attempt to substitute this with a conviction for rape under Section 3 of the Sexual Offences Act was legally untenable. He concludes this ground by citing Peter Ochieng v Republic (1985)eKLR where the court held that “Where an accused is charged with a non-existent offence or one not supported by particulars, the entire trial is a nullity and no amount of evidence can cure it”. 9.On the intermediary, the Appellant relies on NM v Republic (2014) eKLR, submitting that the court abdicated its duty to conduct a voire dire to establish the victim's vulnerability. 10.He further argues that under Section 31(10) of the Act, a court shall not convict solely on the uncorroborated evidence of an intermediary. The Appellant argues that the essential ingredients of the charged offences were never established. 11.On the alternative finding of rape, the Appellant submits that consent is the cornerstone of the offence, citing Martin Nyongesa Wanyonyi v Republic, Cr. App No. 661 of 2010. He argues that since the complainant never testified, the issue of consent remained unaddressed. 12.The Appellant highlights that the court failed to assess the victim's competence under Section 125 of the Evidence Act. He cites David Ndumba v Republic, Cr. App No. 272 of 2012 eKLR, where the Court of Appeal emphasized the need for the trial court to observe and assess a witness alleged to be mentally impaired, before declaring them incompetent or bypassing their testimony altogether. He also cites the decision in in John Maundu Mutetei v Republic(2020) eKLR, where the failure to call the complainant without a proper judicial determination of competence was found to be fatal to the prosecution’s case. 13.The Appellant concludes that the conviction was based on presumption and conjecture, rather than sound legal proof, and therefore prays that the appeal be allowed and the conviction quashed. Respondent’s Submissions 14.The State opposed the Appeal. 15.The Respondent submits that the Appellant's conviction under Section 3(1)(a) of the Sexual Offences Act was lawful, supported by overwhelming evidence, and within the powers of the trial court. 16.The Respondent further submits that the contention that the charge was defective is without merit. The Respondent argues that although the charge was initially brought under Section 8 of the Act which deals with defilement, the evidence adduced during the trial clearly proved the ingredients of rape under Section 3 of the same Act. 17.The Respondent maintains that rape is a cognate offence to defilement, as both are founded on the same essential ingredient of unlawful sexual penetration, with the primary distinction being the age of the complainant. To support the court's power to convict on a cognate offence even if not expressly charged, the Respondent relies on Section 179(1) of the Criminal Procedure Code. 18.In further support of this submission, the Respondent draws guidance from the Court of Appeal in John Irungu v Republic (2016) eKLR, where it was held that a court may lawfully convict an accused of a cognate or lesser offence disclosed by the evidence, even though not expressly charged, provided that no prejudice or miscarriage of justice is occasioned. The Court emphasized that what matters is whether the accused was aware of the essential facts and had an opportunity to defend himself. 19.On whether the alleged defect is curable or variance in the charge, the Respondent cites Section 382 of the Criminal Procedure Code, which stipulates that no finding, sentence, or order should be reversed on account of any error or irregularity unless it has occasioned a failure of justice. 20.The Respondent emphasizes that the Appellant was fully aware of the nature of the allegations, actively participated in the trial by cross-examining witnesses, and presented a defense, meaning no prejudice or miscarriage of justice occurred. 21.The Respondent further argues that the appointment was lawful, justified, and procedurally proper under Section 31 of the Act. The Respondent points out that a report confirming the complainant's mental impairment was filed before the trial commenced, and the court properly declared her a vulnerable witness. It is stated that process was transparent, conducted in open court in the presence of the Appellant, who had a full opportunity to cross-examine both the intermediary and other witnesses. 22.Finally, regarding the sentence, the Respondent submits that the twelve-year imprisonment term was lenient given the gravity of the offence and the vulnerability of the victim. The respondent points out that under Section 3(3) of the Act, a person convicted of rape is liable to imprisonment for life. 23.Consequently, the Respondent urges the court to uphold both the conviction and the sentence. Summary of the Evidence 24.PW 1 was the mother of the complainant. She testified that on 7th June 2023 at about 8:00 am she went to pick tea leaves as she directed the complainant to go and prepare lunch. That one Monicah informed her that the complainant had been seen with a security guard, and that she was seen adjusting her trouser. She further told the court that the complainant is about 20 years old, and she suffers from mental disability. She produced the National Council ID for persons with disability (marked as PMFI 3.). During cross-examination she told the court that she knew the Appellant for a long time and that he wanted to run away , after the incident. 25.PW 2, was a Clinical Officer. He testified that he examined the complainant and found that the hymen was absent; there were lacerations in the vaginal wall; there was clear discharge from her vagina. He concluded that there was evidence of penetration due to the lacerations on the vaginal wall and on the vaginal opening. He also observed that she was mentally challenged, and could not express herself fully. 26.PW 3, was the Children’s Officer appointed as an intermediary. She testified that the victim told her that the accused person called her while she was on the road, dragged her into some bushes and wrestled her to the ground. He removed her panty and inserted his thing of urinating into her thing of urinating. That somebody saw him on top of her 27.PW 4, one P.C. Ndirangu, was the arresting officer. He stated that when they went to arrest the Appellant, he ran away upon seeing them. They chased him and the Appellant tried to cross Mathioya River but he was unable. They took him to his house to change his clothes because he had become wet before being taken to the station. 28.PW 5, was the Investigating Officer. She narrated the findings of the investigations, stating that the complainant was accosted by the Appellant, took her under an avocado tree, and defiled her. She further stated that a neighbour heard the complainant’s screams, and went to her rescue. 29.PW 6, was an eyewitness. He told the court that he heard the words: ‘wacha wacha, hapana’ (stop, stop, no). He went to check on the bushes, then saw the Appellant in the watchman’s clothes, belting up, while the complainant was lying on the ground and her trouser was down to her knees. He told the court that the Appellant ran away upon seeing him. He looked for the complainant’s mother who took the complainant to the hospital. 30.In cross- examination, he stated that, they took about an hour before they found the complainant’s mother, and that the complainant was taken to the hospital the same day. He did not know how the appellant was arrested and didn’t have any grudge against the Appellant. The Defence Case 31.The Appellant denied the allegations. He stated that at about 5:00 pm on the same day he heard that he was being accused of having been with a girl whom he did not know. He went to the girl’s home and found the girl, her mother and the uncle. That they insisted on talking to the area Nyumba Kumi but PW1 refused to honour the elders summons. He was later arrested by the police. 32.He further told the court that he had some differences with the complainant’s uncle in relation to his refusal “to steal from the company”. He insisted that the charges were trumped up. Analysis and Determination 35.This being a first appeal, this Court is under a duty to review and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32 and reiterated in numerous decisions of the superior courts. 36.Upon consideration of the record, the amended grounds of appeal and the rival submissions, the court has identified the following issues for determination:a)Whether the charge sheet was fatally defective and whether the trial court properly convicted the Appellant for the offence of rape.b)Whether the appointment and use of an intermediary complied with Section 31 of the Sexual Offences Act.c)Whether the prosecution proved the offence of rape beyond reasonable doubt.d)Whether the sentence imposed was lawful. Whether the charge sheet was fatally defective and whether the conviction for rape was lawful 37.The Appellant’s first complaint is that he was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act whereas the complainant was an adult aged about twenty-two (22) years. It is therefore argued that the charge disclosed a non-existent offence and that the trial court could not cure the defect by convicting him of rape under Section 3 of the Sexual Offences Act. 37.Section 134 of the Criminal Procedure Code requires every charge to contain sufficient particulars to give reasonable information as to the nature of the offence alleged. The object is to ensure that an accused person understands the case he is required to meet. The Court of Appeal in Yongo v Republic (supra), held that a charge is defective where it does not accord with the evidence or where it creates uncertainty as to the offence alleged. 37.However, not every defect is fatal. Sections 179 and 382 of the Criminal Procedure Code recognize that certain defects or variances may be cured provided no prejudice is occasioned to the accused. 37.The evidence on record leaves no doubt that the complainant was an adult suffering from mental disability. PW1 described her as about twenty years old while the pleadings and submissions consistently indicate that she was twenty-two years old. Indeed, the prosecution never alleged that she was a child. Consequently, a charge under Section 8 of the Sexual Offences Act was legally inappropriate because the offence of defilement can only be committed against a child as defined under Article 260 of the Constitution and Section 2 of the Children’s Act. 37.The question therefore is whether the trial court properly invoked Section 179 of the Criminal Procedure Code in convicting the Appellant of rape. Section 179(1) of the Criminal Procedure Code permits a court to convict an accused person of a minor or cognate offence disclosed by the evidence, although he was not expressly charged with that offence. The principle has been considered, interalia in Mugendi v Republic (Criminal Appeal E027 of 2022) [2023] KEHC 20760 (KLR) , where it was emphasized that the substituted offence must arise from the same facts and the accused must not suffer prejudice in the conduct of his defence. 38.Although defilement and rape share the common ingredient of unlawful penetration, they are distinct offences whose distinguishing feature is the age of the complainant. Defilement protects children while rape protects adults where sexual intercourse occurs without consent or where the complainant is incapable of giving consent. 37.In the present case, the particulars in the charge expressly alleged that the complainant was "an imbecile." Throughout the trial, the prosecution evidence was directed at establishing that the complainant was an adult suffering from mental disability and therefore incapable of giving lawful consent. The Appellant cross-examined all witnesses on those issues and in his defence denied any sexual encounter altogether. His defence was therefore not directed to the age of the complainant but to the occurrence of the offence itself. 38.In those circumstances, although the framing of the charge under Section 8 of the Act was erroneous, this Court is not persuaded that the error led to any miscarriage of justice. The factual allegations remained unchanged throughout the proceedings, and the Appellant clearly understood the nature of the accusation he was required to answer. Accordingly, the defect was curable under Sections 179 and 382 of the Criminal Procedure Code. 39.I therefore find that the trial magistrate did not err in treating the proved facts as disclosing the offence of rape. The first ground of appeal, therefore fails. Whether the appointment of the intermediary was proper 47.The Appellant has challenged the appointment of the intermediary, arguing that no proper inquiry was conducted before the complainant was declared a vulnerable witness. 47.Section 31 of the Act permits a court to appoint an intermediary where a witness is unable to communicate effectively because of age, mental disability or any other sufficient cause. The appointment is intended to facilitate communication while preserving the accused's right to a fair trial. 48.The record shows that before the trial commenced, the trial court considered a medical assessment report indicating that the complainant suffered mental disability. The court consequently appointed PW3, a Children's Officer, as an intermediary. Although the trial court did not conduct an elaborate inquiry on record regarding the complainant's competence, the medical evidence of PW2 established that the complainant was mentally challenged and unable to express herself fully. The trial magistrate also made a note indicating that from her observation the complainant suffered from mental impairment. That evidence sufficiently justified the invocation of Section 31 of the Act. 47.In the instant case, the Appellant was represented throughout the proceedings and fully cross-examined the intermediary as well as every prosecution witness. No complaint was raised regarding the manner in which the intermediary relayed the complainant's communication, nor has any prejudice been shown. 48.Equally, Section 31(10) of the Act merely provides that a court shall exercise caution where evidence is conveyed through an intermediary. It does not prohibit reliance on such evidence where it is corroborated by other independent evidence. In the present case, the intermediary's evidence was materially corroborated by the testimony of PW6, who found the complainant lying on the ground with her trousers lowered while the Appellant was fastening his trousers after the complainant had screamed "wacha, hapana." It was equally corroborated by the medical findings of PW2 showing fresh vaginal injuries consistent with recent penetration. 49.Consequently, I find no procedural impropriety in the appointment or use of the intermediary. Whether the prosecution proved the offence beyond reasonable doubt 47.To sustain a conviction for rape under Section 3 of the Act, the prosecution was required to prove: penetration; absence of consent or inability to consent; and the identity of the perpetrator. 48.Penetration was proved by the medical evidence of the clinical officer (PW2) who observed fresh lacerations on the complainant's vaginal wall together with evidence of recent penetration. The P3 form and treatment notes were not shaken during cross-examination. 57.Regarding identity, PW6 was an eyewitness who responded immediately after hearing the complainant screaming "wacha, hapana." He found the Appellant fastening his trousers while the complainant lay on the ground with her trousers lowered. His evidence was clear, consistent and remained unshaken during cross-examination. 58.The Appellant's conduct immediately after being discovered was equally significant. Both PW1 and PW4 testified that he fled upon being confronted and later attempted to escape arrest by crossing the river. Although flight alone does not establish guilt, it is a relevant circumstantial fact when considered alongside the other evidence on record. 59.On the issue of consent, the complainant suffered mental disability, a fact proved by the disability card produced by PW1 and the medical testimony of PW2. Further, and more significantly, the evidence relayed through the intermediary disclosed that the complainant resisted the Appellant, was dragged into bushes and subjected to sexual intercourse against her will. PW6 independently heard her screaming "hapana" immediately before finding the Appellant on top of her. 57.The Court is therefore satisfied that the prosecution proved beyond reasonable doubt that the complainant either did not consent and further lacked the legal capacity to give valid consent. 58.The court has considered the Appellant's defence. He told the court that the motive of the charge was an existing grudge involving the complainant's uncle. However, there was no evidence tendered to substantiate the alleged grudge or demonstrate any motive for the prosecution witnesses to falsely implicate him. The trial magistrate properly rejected that defence, and upon my own independent evaluation, I reach the same conclusion. 59.I am therefore satisfied that the prosecution proved all the essential ingredients of the offence of rape beyond reasonable doubt. Sentence 64.The Appellant was sentenced to twelve (12) years' imprisonment. Section 3(3) of the Sexual Offences Act prescribes a minimum sentence of ten years' imprisonment, which may be enhanced to life imprisonment. 65.Sentencing is a matter within the discretion of the trial court and an appellate court will only interfere where the sentence is illegal, founded on wrong principles or is manifestly excessive, as stated in Wanjema v Republic [1971] EA 493. 66.Considering the vulnerability of the complainant and the circumstances under which the offence was committed, the sentence of twelve years' imprisonment cannot be said to be excessive. The trial court exercised its discretion judiciously. 67.Consequently, the appeal against conviction and sentence is without merit, and it is hereby dismissed., and the findings of the court below, are upheld. DATED, SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS, THIS 23RD DAY OF JULY 2026.S. CHIRCHIR.JUDGEIn the presence of :Roba Katelo- Court AssistantThe AppellantMr. Majale for the Respondent.