Chai v Republic (Criminal Appeal E105 of 2025) [2026] KEHC 13448 (KLR) (14 September 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO. E105 OF 2025 SHOKA JABIL CHAI ………………………………………………………………………………. APPELLANT VERSUS REPUBLIC ………………………………………………………………………………………. RESPONDENT **JUDGMENT** 1. The appellant was charged with the offence of rape of a person with mental disability contrary to Section 7 of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with an adult contrary to Section 11(1) of the Sexual Offences Act. 2. The appellant was found guilty of the main charge of rape of a person with mental disability and sentenced to serve 20 years imprisonment. The particulars were that on 28th day of January, 2022 at (particulars withheld) within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of S.L without her consent within the view of S.L a person with mental disabilities. 3. Dissatisfied with the conviction and the sentence of the trial court, the appellant preferred this appeal in the High Court against both the conviction and sentence. 4. The appellant raised several grounds in the petition and the amended grounds of appeal as contained in the amended grounds and submissions. I have carefully considered the said grounds and the submissions by both the appellant and the respondent. The issue for determination in this appeal is whether the charge of rape of a person with mental disability was proved to warrant conviction. 5. This being a first appeal, this court is under duty as laid down in the case of ***Okeno vs Republic (1972) E.A 32*** to revisit the evidence tendered before the trial court afresh, evaluate and analyze it, and draw its own independent conclusions, but bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify which this court must give allowance. 6. In this appeal the appellant was charged under Section 7 of the Sexual Offences Act, No. 3 of 2006 which provides: ***“A person who commits rape or indecent act with another within the view of a family member, a child or a person with mental disability is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.”*** 1. The appellant submitted that the offence under the said section concerns with commission of acts which causes penetration or any indecent act committed within the view of among others a person with disability which is distinct from the offence of rape stipulated under Section 3(1) of the Sexual Offences Act. The respondent did not submit on this issue save submitting that the charge was not defective and in any case the appellant did not raise the issue of the defect of the charge. 2. A clear reading of Section 7 of the Sexual Offences Act, the offence contemplated under the said section is not an offence of rape of a person with mental disabilities. The offence of rape of a person with disabilities is provided for under Section 146 of the Penal Code. In the case of ***Edwin Odongo Aol vs Republic (2021) KEHC 2732 (KLR)*** the court stated: ***“… Section 7 of the Sexual Offences proscribes the rape or committing indecent act with another within the view of a family member, a child or person with mental disability. In the section 7 of the SOA offence, the person with mental disability is the spectator while under section 146 of the Penal Code offence, the person with mental disability, therein called idiot or imbecile, is the victim. Therefore, the appellant was charged with an offence that falls under a different statute, the Penal Code instead of the Sexual Offences Act (emphasize mine).”*** 1. In the instant case it is clear that the appellant was charged under wrong provision of the law. Under the charge the appellant was charged, the prosecution was required to prove that the act of sexual assault is committed ***within the view of a family member, a child or person with mental disability.*** That was not the case here. The person with mental disability was the victim and not a spectator. 2. In the premises the charge in the main charge was defective. This was a fatal defect and it occasioned a failure of justice. Failure by the trial court to direct an amendment under Section 214 of the Criminal Procedure Code to reflect the correct offence led to the conviction of the appellant on an offence that existed under a different statute. 3. Further to the foregoing, the alternative charge was equally defective as it referred the accused as ***Samuel Chome Ngumbao*** who is a different person from the appellant. What this portends is that the prosecution and the investigating officer were not diligence in framing the charges. 4. The appellant further submitted that the trial court failed to adhere to the proper procedure in declaring the complainant a vulnerable person and appointment of PW2 as intermediary. The respondent did not address this issue. This is a pertinent issue. In the case of ***M.M vs Republic (2014) KECA 441 (KLR)*** the Court of Appeal outlined the procedure to be followed before taking the evidence through an intermediary. It stated: ***“It is clear from section 31(2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voire dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before intermediary can be appointed.*** ***It is clear from what we have said so far that the procedure of appointing an intermediary precedes the testimony of the intended vulnerable witness even where the court does so suo moto. It is also clear that an intermediary can be an expert in a specified field or person, who through experience, possess special knowledge in an area or social worker, or a relative, a parent or guardian of the witness.*** ***The expertise, possession of special knowledge or relationship must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’s testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of intermediary’s participation in the proceedings.”*** 1. From the foregoing, it is clear that the procedure of declaring a witness vulnerable and appointment of an intermediary is elaborate and the same is geared towards balancing the protection of the witness with the rights of the accused by ensuring a fair process. It is also not lost that the evidence conveyed by the intermediary is that of the vulnerable witness and not that of the appointed intermediary. 2. In the instant case, the relevant part of the record relating to the appointment of PW2 as intermediary reads: ***Prosecutor:*** *The victim is mentally unstable. She is not able to testify. The mother be appointed as intermediary to testify.* ***Accused:*** *No objection.* ***Court:*** *Application allowed. Mother to victim appointed as intermediary.* 1. It is clear from the foregoing extract of the record that the trial court failed to comply with the elaborate procedure set out in Section 31(2) and 32 of the Sexual Offences Act before declaring the complainant vulnerable and appointing PW2 as an intermediary. 2. In any case, I have perused the record and from what PW2 told the court, it is not the complainant testifying through her but it is the evidence of PW2 based on what the complainant told her. 3. In the premises and in my view there was miscarriage of justice in the manner the evidence of the complainant was taken by the trial court. It is also not even clear from the record whether the victim appeared in court. 4. Without delving on anything else in this matter I find that the charge was defective and the declaration of the complainant as vulnerable and subsequent appointment of PW2 as intermediary did not meet the legal threshold. 5. In the premises, the conviction and sentence were unsafe in the circumstances and the same is quashed and the appellant is acquitted. **Dated, signed and delivered virtually this 14th day of September, 2026.** **F.N Kyambia** **Judge.**