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Masia v Republic (Criminal Appeal E050 of 2025) [2026] KEHC 11487 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11487 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E050 of 2025 KL Kandet, J July 24, 2026 Between Jackson Musembi Masia Appellant and Republic Respondent (Being an Appeal from the Conviction and Sentence by Hon. C.K Cheptoo (PM) delivered on 14{{^th}} July, 2025 in the Principal Magistrate’s Court at Kilungu in Criminal case S.0 No.E020 of 2024) Judgment 1.The Appellant (Jackson Musembi Masia) was charged together with the 2nd Accused person with the offence of gang rape contrary to section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 13th May, 2024 in [Particulars Withheld], in Mukaa Sub-County within Makueni County, they intentionally and unlawfully caused their penis to penetrate the Anus of SMM, a person with mental disability. 2.They faced an alternative charge of committing an indecent act with an adult contrary to section 11(a) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 13th May, 2024, in [Particulars Withheld], in Mukaa Sub-county, within Makueni County, the Appellants intentionally touched the anus of SMM, a person with mental disability. 3.The Appellant pleaded not guilty to both charges. The case went to full trial in which the prosecution called Five (5) witnesses in support of its case. 4.PW1, LWM, testified that she is a farmer and the mother of the complainant, SMM. She stated that on 13th May 2024 at about 3.00 p.m., she sent the complainant to deliver milk, but he took unusually long before returning home at about 7.30 p.m. The following day, she noticed that he had urinated on himself and was unwilling to speak to her. She later observed him concealing a shirt, and he told her that one of the accused persons had given it to him. The complainant subsequently informed her that the two accused persons had intercepted him while he was on his way to deliver milk, taken him into a bush, removed his trousers, made him bend over and sodomized him in turns. He stated that both accused persons had inserted their penises into his anus. PW1 reported the matter to the chief and thereafter to the police. She stated that her son is mentally disabled and is 48 years old. She identified the accused persons as her neighbours and stated that they were brothers. 5.In cross-examination, PW1 maintained that the accused persons were the people who had sodomized her son. She stated that the incident occurred in bushes near their homes and that her son showed her the place where it had allegedly occurred. She stated that she did not recover anything from the scene. She denied having fabricated the allegations against the accused persons. She also maintained the account given by her son concerning the events following the alleged incident and the report he made to her. 6.PW2, SMM, testified with the assistance of an interpreter. He stated that one of the accused persons took him to a bush near the dairy, where his clothes were removed. He testified that both accused persons removed his trousers and inserted their penises into his anus. He stated that he experienced pain and asked them to stop, but they continued, with one accused person going first and the other following. After the incident, he stated that the two men told him to accompany them to Salama. He later went home and informed his mother that the two men had sodomized him. He stated that the incident occurred at about 7.00 p.m. and that he sustained injuries to his anus. He further testified that he was taken to Salama by one of the accused persons and was subsequently taken home by a boda boda rider. He identified the two accused persons as the people who had assaulted him. 7.In cross-examination, PW2 maintained that the two accused persons had taken him to the bush and sodomized him. He stated that he was wearing jeans trousers and a red T-shirt, which he removed and took to the police station. He maintained his account of the events and the involvement of both accused persons. 8.PW3, Eric Kasyamani, a clinical officer at Kilungu Sub-County Hospital, testified that he held a diploma in Clinical Medicine and Surgery. He stated that he examined SMM after the complainant was brought to the hospital with a complaint that he had been sodomized by two people known to him on 13th May 2024 at about 7.00 p.m. According to the history given to him, the complainant stated that the two men had held him, caused him to remove his clothes, made him bend over and inserted their penises into his anus in turns. Upon examination, PW3 found that the anal sphincter muscles were loose. He produced the relevant medical documents, including the P3 form, and stated that the complainant was a person with a mental disability. 9.During cross-examination, PW3 stated that the complainant knew the people who had allegedly sodomized him. He stated that he could not identify the person who had committed the act but maintained that the examination findings were consistent with sodomy. He further stated that the complainant was examined more than 20 days after the alleged incident and that no spermatozoa were found. 10.PW4, No. 227188 CPL John Ndambuki, the investigating officer testified that he was assigned to investigate the matter after it was reported by LWM. The report was that her 48-year-old mentally challenged son had been sodomized by two men identified as Patrick and Kyalo. PW4 testified that he examined the complainant and found that he was unable to communicate clearly. He subsequently took him to Kilungu Sub-County Hospital, where he was examined and treated. He stated that the complainant received medication and counselling for several days. PW4 further testified that he arrested the two accused persons and subsequently charged them in court. 11.It his testimony that the complainant repeatedly identified the two accused persons by name and described their respective involvement in the incident. He testified that the complainant had been accosted while taking milk to the dairy at about 7.00 p.m. and that, although he did not immediately report the matter to his mother, she noticed a change in his walking the following day and inquired what had happened. The complainant then informed her that the two accused persons had inserted their penises into his anus. PW4 also stated that he visited the alleged scene, which was near the road and had bushes that had subsequently been cleared. 12.In cross-examination, PW4 stated that the incident occurred on 13th May 2024 and that he conducted investigations for more than a month before arresting the accused persons. He stated that he accompanied the complainant to hospital and that he had asked the complainant to report the matter after carrying out investigations. He acknowledged that he did not collect the complainant's clothes for examination. He maintained that he had conducted investigations and had visited the alleged scene. He described the scene as being approximately three metres from the road and stated that the road was not too busy. He further stated that he arrested the second accused when the latter went to visit the first accused and that he was the person who had called the second accused to the police station. 13.PW5, Daniel Manoti Maweu, testified that he worked as a psychologist at Kilungu Sub-County Hospital and held a Bachelor's degree in Psychology from the University of Nairobi. He stated that he examined SMM, who had been accompanied by his mother, for purposes of assessing his mental status. He used several methods, including observation of behaviour, psychological evaluation, IQ assessment and mental status examination. He produced his report dated 3rd February 2025. He stated that he concluded that the complainant had a neurodevelopmental disorder which had begun in childhood. He explained that the condition affected the complainant's memory, understanding of issues, orientation to time and place and perception. He stated that the complainant could identify people and places but had difficulties with time and orientation. He further testified that the complainant had a disordered thought pattern and could shift from one subject to another during conversations. 14.In cross-examination, PW5 stated that the complainant had been brought to him for mental assessment and treatment and that he found him to have a neurodevelopmental disorder. He stated that the complainant's level of concentration could shift. He further testified that the complainant could recall traumatic events and that trauma could increase his symptoms. He stated that the complainant could remember things that had happened and could identify people very well, although he had difficulties with time and places. He stated that the complainant could not presently live alone without treatment, medication and someone to assist him. He further explained that the complainant's condition had existed from birth and became more severe with time. He stated that the complainant had a right to be heard and that he was therefore able to testify in court. PW5 further stated that the complainant had no eye problems and that, if he was familiar with a particular place, he could be taken there and find his way home. He stated that the complainant had difficulties with orientation concerning recent events but could recall past events. He also stated that the complainant could testify with assistance. 15.In response to questions from the court, PW5 stated that the complainant was able to recollect issues but might fail to do so because of his disorder. 16.At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established against the Appellants and they were each placed on their defence. 17.DW1, Jackson Musembi, the Appellant herein , testified in his defence that on 4th June 2024, a man approached him and informed him that he was under arrest before taking him to Salama Police Station. Three days later, he saw his brother at the police station, and they were subsequently charged in court. He denied committing the offence. He stated that the case had been brought by his neighbour, whom he said had issues with him following the death of their parents. According to him, the neighbour had previously passed by his home and threatened that she could frame him. He maintained that this was how he came to be framed. 18.He further stated that on 13th May 2024, the date when the offence was alleged to have occurred, he was in Kasikeu, where he had been farming for about one month before returning home. He maintained that he had been framed because he had established his family well. 19.In his further testimony, DW1 stated that the complainant had nothing against him and alleged that it was , the complainant's mother, who had issues with him. He stated that the complainant had been coached to frame him. He maintained that he was at Kasikeu at the material time and was with his cousins, although he acknowledged that they were not witnesses. He confirmed that the complainant was his neighbour. He denied that the complainant passed near his house when going to the market, stating that they used different routes to the same market. 20.DW2, Patrick Kyalo, the 2nd Appellant herein, denied committing the alleged offence. He stated that on 6th June 2024, he woke up and went to hospital to collect medication for HIV. When he returned, he found that his brother, DW1, had been arrested. He went to the police station to check on him and was arrested there. He was subsequently arraigned in court and charged together with his brother. He denied having committed the offence as alleged. 21.At the conclusion of the trial, the Appellant was convicted on the charge of gang rape and were each sentenced to serve 20 years' imprisonment. 22.Being dissatisfied with the conviction and sentence, they lodged this Appeal vide undated Memorandum of Appeal and based on the following grounds;-1.That the learned trial Magistrate erred in both law and in fact by convicting them on evidence that did not meet the minimum threshold of proof beyond a reasonable doubt, hence erroneously convicted the Appellant.2.That the learned trial Magistrate erred in law and in fact by relying on trumped up charges and fabricated stories where it was clearly demonstrable that the complainant lied to the Court under oath.3.That the learned trial Magistrate erred in law and in fact by considering that the prosecution’s case was marred by contradictions and inconsistencies which were notable across all the witness testimony.4.That the learned trial Magistrate erred in law and in fact by not considering the gross contravention of Article 50 in that the Appellants herein were not made to understand the exact charges that were levelled against them.5.That the learned trial Magistrate erred in law and in fact by failing to consider the mitigating factors as provided under guidelines 23.8 pf the sentencing policy guidelines and proceeded to sentence the Appellants.6.That the trial Magistrate erred in both law and fact by dismissing their mitigation factors and circumstances which were solid enough to have moved to issue an acquittal verdict. Respondent’s Submissions 23.The Respondent submitted on two issues. In evaluating whether the trial magistrate reached a sound decision, it was submitted that this Court, acting as a first appellate court, has a duty to independently re-evaluate and analyze the evidence on record while giving due allowance for the trial court’s observation of witness demeanor . In support of this, they relied on the case of Okeno v. Republic [1972] EA 32 and Mark Oiruri Mose v. Republic [2013] eKLR). 24.On whether the trial magistrate erred in law and fact by holding that the prosecution proved the charge of gang rape beyond a reasonable doubt. The prosecution submitted that the evidence adduced before the Court by the prosecution witnesses painted a complete picture to show that the complainant was assaulted by the Appellant. It was argued that in as much as there were slight contradiction, the same was not enough to cast doubt on the prosecution case and thus the case was proved beyond reasonable doubt. 25.On whether the trial magistrate erred by relying on allegedly trumped-up charges and fabricated stories, requiring a review of witness credibility and whether any conspiracy against the appellant existed. It was argued that the integrity of the witnesses was canvassed by the trial magistrate, that the court after hearing both sides found that there was nothing to suggest the prosecution witnesses had conspired against the Appellant. 26.In respect to the sentence, the prosecution argued that in mitigation, the Appellant prayed for leniency, however, under section 10 the Sexual offences Act, an accused person when found guilty is liable to a sentence of not less than 15 years which may be enhanced to imprisonment for life. On that basis, they argued that based on the circumstances of this case, being that the person raped was a person with mental disability, the trial court was justified in enhancing the Appellant sentence to 20 years. 27.In conclusion, the Respondent cited the case of Mbogo v. Shah & Another [1968] EA 93 on the circumstances under which an Appellate Court may interfere with a decision of the trial Court, in which the court held as follows;-“I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion.” 28.Accordingly, the Respondent urged this Court to find that the conviction was safe, lawful and supported by overwhelming evidence, and uphold the same. Analysis and Determination 29.As a first appellate court, this Court’s duty is to re-evaluate the evidence given at the trial court. This duty was succinctly stated by the Court of Appeal for Eastern Africa in Pandya Vs. Republic (1957) EA 336 thus;-“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 30.The law on Gang rape is provided for under section 10 of the Sexual Offenses Act and states that;-“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.” 31.The term gang is defined under section 2 of the Sexual offenses to mean; “ two or more persons” 32.From the foregoing provision, the prosecution was required to establish the three essential ingredients of the offence of gang rape beyond reasonable doubt. These are; that there was penetration, that the penetration was without the consent of the complainant, and that the act was committed in association with another person or persons. 33.Indeed, in the case of Mutiso & another v Republic (Criminal Appeal E032 & 33 of 2023 (Consolidated)) [2025] KEHC 4043 (KLR), the court stated as follows in this regard:-“For a conviction based on a charge of “Gang Rape” to be sustained, the prosecution must prove the following four elements beyond reasonable doubt:a.Penetration as defined by section 2 of the Sexual Offences Act without consent thereof;b.In association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape.c.Positive identification of the perpetrator.” 34.In respect to the first element of penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 35.In the present case, the evidence on penetration came principally from PW2, the complainant. He testified that the two Appellants took him to a bush, removed his trousers and made him bend over. He stated that each of the Appellants inserted his penis into his anus in turns. He further testified that he experienced pain and asked them to stop, but they nevertheless proceeded with the act. 36.His evidence was direct and specific as to what was done to him. He did not merely state that he had been assaulted; he described the manner in which each of the two Appellants allegedly participated in the sexual act. 37.This evidence was corroborated by PW1 who told the trial Court that the complainant returned home late on the material evening and that she subsequently noticed a change in his behavior as he refused to talk to her. She stated that PW2 later disclosed to her that the two Appellants had taken him to the bushes and sodomized him, giving details of how the offence was committed. Similarly, PW4, the investigating officer, testified that the complainant reported that the two Appellants had sexually assaulted him. 38.To further support their case, PW3, the Clinical officer testified that he is the one that examined the complainant after 20 days from the time of the alleged offence and found that the anal sphincter muscles were loose. Although the clinical officer admitted that there was delay in medical assessment of the Victim, he nonetheless concluded that the loose rectal muscles were a clear indication that the complainant had been sodomized. 39.An argument was raised on the finding of the medical examination which ruled out presence of spermartazoa or any physical injuries. Indeed, the fact that no spermatozoa were detected does not, in my view, by itself negate the complainant's account. The alleged offence involved anal penetration, and the medical examination was conducted after a considerable lapse of time. More importantly, the prosecution case on penetration did not rest solely on the medical evidence. Rather, it was anchored primarily on the complainant’s direct account of the act allegedly perpetrated against him. This position has been affirmed by the courts in several cases, including in the case of Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), where AK Ndungu J, reiterated that defilement may be proved by medical, oral, or circumstantial evidence. In that decision, the court cited with approval the holding in AML v Republic [2012] eKLR where it was stated:-“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” 40.The same principle was affirmed earlier by the Court of Appeal in Kassim Ali v Republic, Criminal Appeal No. 84 of 2005 (Mombasa), unreported where the Court stated that absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 41.Similarly in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal on the same issue stated thus;-“In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.” 42.As regards consent, PW2's evidence was that he did not consent to the act. He stated that he was taken to the bush, his trousers were removed and he was made to bend over. He further testified that he experienced pain and asked the Appellants to stop, but they continued. This evidence, demonstrates that the sexual act was against his will. 43.Upon consideration of the evidence, I find that the complainant's account on penetration was clear and consistent on the material point that both Appellants inserted their penis into his anus. His evidence on the absence of consent was equally clear. The medical evidence, also corroborated his account. On that basis, I find that the prosecution proved the element of penetration without consent beyond reasonable doubt. 44.On whether the Appellant acted in association or with a common intention in the commission of the offence, PW2 testified that the two Appellants were together when they allegedly took him to the bush. He stated that both Appellants removed his trousers and that they each proceeded to penetrate him in turns. His evidence thus attributed an active role to each Appellant and placed them together throughout the commission of the offence. PW2 further identified the Appellants by name and testified that the Appellants were brothers and his neighbours. His account was corroborated by PW1, who testified that the complainant named both Appellants as the persons who had assaulted him. Similarly, PW4 testified that the complainant consistently identified both Appellants as having participated in the offence. 45.Although the Appellant denied committing the offence, the evidence of PW2, taken together with the corroborative evidence of PW1 and PW4, established more than the mere presence of the Appellant at the scene. It demonstrated that each Appellant played an active role in the commission of the offence. The evidence disclosed a coordinated and sequential course of conduct, with each Appellant participating in the sexual assault of the same complainant during the same transaction. I therefore find that the prosecution proved, beyond reasonable doubt, that the Appellants acted in association and with a common intention in the commission of the offence. 46.On the final element concerning the identity of the perpetrators, PW2 testified that he knew the two accused persons. PW1 similarly stated that the Appellant was his neighbor. The prosecution case was therefore not dependent upon identification of unknown person; rather, the complainant's evidence was that the persons who assaulted him were people known to him. 47.PW2 directly named the Appellant and attributed a specific role to each of him. He stated the Appellant was one of the two persons who took him to the bush and that each participated in the sexual assault. Following the incident, he disclosed their identities to his mother, PW1. In addition, PW4, the investigating officer, further testified that the complainant consistently named the two Appellants during the investigation. 48.The fact that the complainant was a person with a mental disability was, however, a matter that required careful consideration in evaluating his evidence. In this regard, PW5, the psychologist, testified that the complainant had a neurodevelopmental disorder which affected his memory, understanding, orientation and perception. Nevertheless, PW5 also stated that the complainant could identify people very well and could recall traumatic events. He further stated that although the complainant required assistance, he was capable of testifying. 49.The evidence of PW5, therefore, did not suggest that the complainant (PW2) was incapable of recognizing or identifying persons. On the contrary, the psychologist specifically stated that the complainant was able to identify people well. His mental condition consequently required the court to scrutinize his evidence with care but did not, in itself, render his evidence incapable of belief. 50.The defence challenged the complainant's identification of the Appellants. DW1 alleged that PW1 had a motive to frame him and that the complainant had been coached to implicate him. He further raised an alibi and stated that he was in Kasikeu on the material date. DW2 denied the offence and stated that he was arrested when he went to the police station to visit DW1. These defences raised a direct challenge to the prosecution's case on identity. Nevertheless, the complainant's evidence was that the Appellant was known to him, and his account was that he was with them during the incident. His identification of the Appellant was also made in circumstances where, according to PW1 and PW4, he subsequently named accused as the persons responsible. The evidence of PW5 further supported the complainant's ability to recognize persons despite his mental condition. 51.Taken together, this Court is of the view that, notwithstanding the complainant’s mental disability, the medical expert confirmed his capacity to testify and to have his evidence recorded in Court. His testimony remained consistent throughout, including when he was subjected to cross-examination, and he did not depart from his account of the events. In the circumstances, I find that the prosecution established, to the required standard, the positive identification of the Appellant as one of the perpetrators of the offence. The allegations of fabrication and the alibi advanced by DW1, in my assessment, did not raise a reasonable doubt when weighed against the complainant’s direct evidence and his subsequent disclosures to PW1 and PW4. 52.In light of the foregoing, this Court finds that the prosecution proved the three essential elements of the offence to the required standard, beyond reasonable doubt and thus the conviction was safe. 53.Regarding the sentence, Section 10 of the Sexual Offences Act, No. 3 of 2006, provides that a person convicted of the offence of gang rape is liable to a minimum sentence of fifteen (15) years’ imprisonment, which may be enhanced to imprisonment for life. 54.In the circumstances of this case, although the statutory minimum sentence for the offence is fifteen (15) years’ imprisonment, this Court is satisfied that the trial court was justified in imposing a sentence of twenty (20) years’ imprisonment, having regard to the aggravating circumstances surrounding the commission of the offence. The victim was a mentally challenged man and was, therefore, a particularly vulnerable member of society who was unable to protect himself from such an attack adequately. 55.The vulnerability of the victim, coupled with the gravity of the offence and the circumstances in which it was committed, constituted sufficient aggravating factors to warrant the imposition of a sentence above the statutory minimum. 56.I consequently find no basis upon which to interfere with the sentence of twenty (20) years’ imprisonment imposed by the trial court. 57.In the end, this Court finds no merit in the appeal. The appeal against both conviction and sentence is hereby dismissed in its entirety. Accordingly, this Court upholds the conviction and sentence imposed by the trial court. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Appellant In Person From Kamiti Max PrisonMs Musango For The StateCourt Assistant: Jael Nosim