https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11165

Khayakia v Republic (Criminal Appeal E084 of 2025) [2026] KEHC 11165 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11165 (KLR) Republic of Kenya In the High Court at Makadara Criminal Appeal E084 of 2025 J Wakiaga, J July 21, 2026 Between Ann Khayakia Appellant and Republic Respondent (Being an appeal against the original conviction and sentence in Criminal Case No E335 of 2922 of the Chief Magistrates Court at Makadara) Judgment 1.The appellant was convicted and sentenced to 14 years’ imprisonment for the offence of gang rape contrary to section 10 of the sexual offences act the particulars of which were that on the 11th November 2022 at Jamaica slums in [Particulars Withheld] of Makadara sub county with another not before the court intentionally cause the penis of JOP to penetrate her vagina and then caused the anus of JOP to be penetrated by the penis of the other man not before the court, a child aged 13 years. 2.Being aggrieved by the said conviction and sentence, she filed this appeal initially at the criminal registry at Milimani as Criminal Appeal No E 199 of 2024 which appeal was transferred to this registry and raided the following grounds of appeal:a.The court erred and grossly misdirected itself by holding that the complainant’s testimony as completely truthful and free from error and doubt despite the same being at variance with the evidence adduced and other witnesses’ testimony.b.The court erred in failing to appreciate that the prosecution evidence was marred with inconsistencies and contradictions and that its witness testimony did not support its case.c.The trial court erred in law and fact by determining that the identification of the second assailant was proved to the required standard notwithstanding evidence and witness testimony expressly confirming that there was no 2nd assailant.d.The court erred in dismissing testimony that supported the appellants defence.e.The court erred in relying on a medical report that did nlot create a nexus between the appellant and the alleged offence.f.The court misdirected itself in law by shifting the burden of proof to the appellant to prove that there was no DNA evidence found on the complainant and by further ignoring the defence of the appellant without proper evaluation.g.The court erred in law and fact by issuing a sentence that was harsh and excessive.h.The court erred by failing to consider the provisions of section 333 of the criminal procedure code while sentencing. Submissions 3.Directions were issued on the disposal of the appeal by way of written submissions. On behalf of the appellant it was submitted that the appellant was convicted on the weight of evidence that was not corroborated and on the basis of medical report that did not support the charge against the appellant and in particular that the complainant’s anus was of normal anatomy with no spermatozoa detected therein. That there was contradiction in the testimony of the complainant as to whether the second assailant used condom or not and when looked at through the complainant initially statement to the police. 4.It was contended that the trial court erred when she disregarded this contradiction and inconsistency in the prosecution case and the fact that there were no DNA samples taken so as to corroborate the complainant’s account of the occurrence of events and shifting the burden thereof to the appellant. It was contended further that crucial witness, the appellants 16-year-old son who allegedly escorted the complainant home was not called to testify. It was submitted that in the absence of the second assailant who was neither investigated nor arrested ,the offense of gang rape cannot stand. 5.It was further submitted that there were inconsistencies in the prosecution case as regards whether the complainant had visited the appellants house before and what took him to her house on the material day, for which the case of Wycliff Lumala v Republic [2020] KEHC 6731 (KLR) was relied upon on the thesis that evidence that did not corroborate the complainant testimony should not be relied upon. 6.It was submitted that the complainant’s testimony was not truthful to comply with the provisions of section 124 of the evidence Act . 7.On the appellants defence it was submitted that the appellant raised the issue of the nature of her relationship between the complainant and his family which the court did not take into account but relied on the fact that the appellant left home the following morning without taking breakfast as an indication that something was wrong and that the appellant had lied that she had called the complainant’s step- father the following day, a defence which the court considered farfetched and that it was not speculative for the appellant to think that she was being set up based on the relationship , between herself and the complainant’s step- father. 8.On sentence , it was submitted that the court sentenced the appellant to 14 years taking into account the period she had spent in custody from 22nd November 2022 up to august 2024having imposed the minimum sentence of 15 years under section 10 of the Act, without exercising discretion and against the jurisprudence from the Court of Appeal. 9.On behalf of the respondent it was submitted the complainant’s evidence was corroborated by PW2 and PW3 the mother and the Medical Officer. It was contended that the complainant gave history of what happened having been sent to the appellant by his father who was his second wife. That the appellant told him not to go back home since it was late only to later on defiled him at night and further to invite the second assailant to deal with him. He was able to recognized the voice of the second assailant but not his face since it was covered. 10.It was submitted that penetration was proved through the production of P3 form by PW3 and that the age was proved to be 13 years. Since there were more that one assailant gang defilement was proved. Identification of the appellant was proved since she confirmed that the complainant spent the night her house and that she had never quarrelled with the same. It was submitted that there was no bad blood between the appellant and the complainant and his mother Proceedings 11.This being a first appeal , the appellant is entitled to re-evaluation of the evidence tendered before the lower court and to come to its own conclusion thereon while giving allowance to the fact that unlike the trial comport , it did not have the advantage of seeing and hearing witnesses. 12.PW1 JOP stated that he was born on 1st January 2010 and was 13 years as at the time, he had been sent by his step father to take a mobile phone to the appellant and was advised to sleep over since it was late. The appellant later removed her younger son from the mattress where they were sleeping to her bed, she then sat next to him and told her that she had a problem and needed his help to feel good and when he asked her what it was , she said she wanted them to engage in sex and she went to the kitchen and came back with a knife and told him to do what she wanted or else she would stab him. She then touched him until he got an erection and inserted his penis into her vagina. 13.It was his evidence that after she was done with him , she went outside and came back with a man whom she told to deal him hi. He told him to lie down and penetrated him in the anus. In the morning the appellant gave him kshs 200 and told him not to tell anyone what had happened and when he got back home , he reported to his sister and brother who later told his mother. 14.In cross examination he stated that the appellant used to work for his grand mother in the village and that he had gone to her house with his father t before to take food and that there were four children in the appellants house on the material night and that he could not identify the 2nd assailant save through his voice. 15.PW2 a clinical officer from MSF confirmed that the victim was born on 213th October 2008 and was examined on allegation of sexual offence which occurred on 12th November 2022. There were no visible physical injuries on the body. On genital examination, his penile shaft was of normal anatomy with no injuries or abnormal discharge. The anus was of normal anatomy with loosed sphinxes tore with a visible bruise at 12 o’clock position. Psychological reaction was compatible with the assaults as alleged and physical examination revealed to physical marks that were compatible with assault and that the incidence was not presented to any police station and that anal swab revealed no spermatozoa. 16.In cross examination it was stated that the loose anal sphincter was normal for his age and that the conclusion was based on the history given and the fact that the victim was sad. PW3 J A the complainant’s mother produced the birth certificate. She stated that the victim’s father had the phone of the appellant for repairs. She confirmed that the appellant used to be a house help for her mother in law and was brought to Nairobi by her husband , who left the phone with her to give to the victim to take to the appellant after school where he spent the night. 17.It was her evidence that the complainant came back when she had gone to work. When he came back her went to their room to sleep and when she checked on him, he never responded causing her to inform his father, who spoke to him on phone and was infirmed by the same what happened to him ,causing her to take him to the clinic. She stated that she was not relating well with the appellant and that it was only her husband who related with her and that it was not correct that the victim was not defiled anally . 18.In cross examination she stated that she never saw the appellant during the time she worked for her mother in law and that her husband was not the biological father of the victim and that he had a love a fair with the appellant and would take the victim to the appellants house to spend the night there and that she only saw her on the date of arrest 19.PW4 the Investigation Officer received the victim and his mother at the station on allegation that the appellant threatened him and he allowed her to have sex with her after which she went outside and came back with a man who sodomized him and that they sought treatment before reporting to the police. He issued them with P3 form, on 24th he was taken to the appellants house where he arrested her but were unable to arrest the second assailant since she denied the occurrence of the event. The appellant informed him that she was married to the victim’s father and that she only got to know that he had another wife once he brought her to the city. It was his evidence that the relationship between the appellant and the victim was good . 20.In cross examination he stated that the victim stated that he was defiled by two peoples and that the appellant was with her other three children in the house while the older one had was not there but he did not take their statements and that they did not pick finger prints from the scene and that the father of the victim was summoned but never went to the police. The case was reported after three days . 21.When put on his defence ,the appellant stated that she used to work for the victims grand mother from the year 2019, who later told her that the victims fathers wife had died leaving behind a 14 year old child and when the father came to the village she told him that she had five children whom he accepted and in march 2020 she came to Nairobi and was taken to a house in Huruma where she met the victim , three other children and a pregnant woman whom she he introduced as his mothers cousin but she concluded was his wife. She declined to stay in that house and in may he secured for her a job as a house helper in Kahawa. She later secured her own house at lunga lunga at which the father of the victim would visit her four times in a month, sometimes with the victim. 22.That on the material day the victim came to her house at 9.00pm and handed her the phone who then sat with her other children who were playing on phone. Her eldest son then left for his sleeping place while the victim and her other son slept on the floor and in the morning being Saturday when the appellant was going to church, the victim said he would wait for the appellants elder son to escort him and that when she realized that the phone was not working, she called the victims father but it was the mother who responded, who called her a husband snatcher and threatened to do something to her. She did not hear anything from the victim’s father until the 24th when she was arrested in the presence of the victim and his mother. 23.It was her evidence that she did not use paraffine in her house as the victim’s father had bought her electric coil and heater and that she does not switch off the light at night unless the father of the victim is a round and that he did not tell her that he would send the victim to bring to her the phone. She stated that the victim was stronger than her and would have pushed her if she attempted to defile him. 24.DW2 Sharon Liona Mutula stated that her house was behind the appellants house and if anything happened therein she would have heard. She confirmed having seen the appellants son escorting the victim. It was her evidence that one day the victims father came to the appellants house armed with a gun and threatened to set the house a blaze if she did not move and the matter was reported to the chief and that she later saw leaflets asking the appellant to relocate and go back home. It was her evidence that the appellant could not commit the offence she is charged with. Determination 25.In this matter the court has identified the following issues fir determination :a.Whether the offence of defilement was proved in the absence of the alleged second assailantb.Whether the appellants defence was properly considered and rejected by the courtc.Whether the court shifted the burden of proof upon the appellantd.Whether failure to call vital prosecution witnesses was fatal to the prosecution case 26.In this matter, the fact that the appellant was known to the victim is not in dispute. The only issue in dispute was whether , the appellant defiled him as alleged and thereafter called another unknown man to defile him further. I have looked at the victims account of events, his evidence on record is that the appellant first seduced him in his words “ she had a problem she needed my help, I asked her which one. She told me she wanted I do her she feels good. …… she told me she wanted we engage in sex. I refuse . I told her she is my mothers age so I cannot do it “ she then threatened him with a knife and to burn him if he declined her advances and the rest as they say is history! 27.Having then succeeded in achieving her mission , the question which the trial court did not answer and which the prosecution failed to prove was the motive of the appellant calling an unknown man to deal with the victim ?, further as submitted by the appellant the prosecution failed to investigate the issue of the alleged second assailant as none of the appellants neighbours were interviewed, noting that the victim’s claim was that the appellant came back with him after five minutes, thereby leading to the assumption that he must have been a neighbour within the plot. 28.The identification of the alleged second assailant was also fault since the complaint’s evidence was that he could only recognize his voice but not his physical appearance since his face was covered but without stating that he had heard the same speak before so ads to recognize his voice. 29.The prosecution further failed to call as witnesses the appellant’s son who escorted the victim and the victim’s father who seems to be the cause of the appellant’s predicaments and therefore leading to adverse inference that their evidence would have been adverse to the prosecution case. 30.The matter was not properly investigated having taken into account the evidence of DW2 as to how their houses were constructed and having stated that she did not hear the appellant open her door , her evidence on record that she could hear the victim and the appellants children playing games on phone a fact that the compliant confirmed. Neither were the appellants neighbours’ interview to corroborate the complaint’s account that the appellant having been done with him opened the door to come with the second assailant. 31.Having looked at the appellants defenced to the effect that the complainant’s mother threatened her as a husband snatcher when she called to find out where their common law husband was, the delay in reporting to the police and the fact that it was reported to the hospital first before the police and taking into account the fact that the medical report was inconclusive, this should have been taken into account by the trial court , the benefit of which should have been given to the appellant. 32.It is clear that the courts finding that the person who defiled the victim in his anus wore protection was not supported by the evidence on record as the victims account was that whereas he ejaculated into the vagina of the appellant , the second assailant also ejaculated into his anus and therefore the submissions by the appellant on the lack of spermatozoa upon examination cannot be casually dismissed in view of the victims account that “ he kept on pushing in . I then felt some wet substance pour in my anus. He then withdrew his penis. He then dressed back my boxers and trousers “. 33.It is also clear that the court dismissed the appellant’s character witness in one sentence “ well, looks are deceiving and the heart of a man is greatly deceitful. DW2 cannot claim to fully know what accused is capable of or not “ , without interrogating the role of the complainant’s mother in the reporting herein and the role of his father and why the same would refuse to record his statement with the police , so as to corroborate the account of the victim and his mother. The court was left to speculate on this vital piece of evidence. 34.In this matter I find and hold that failure to call the complainant’s father and sister as witnesses together with the appellant’s son who was the last person seen with the complainant on the morning of the incidence was fatal to the prosecution case and therefore the prosecution case was not proved beyond reasonable doubt, the conviction thereof was not safe and free from error. 35.Further failure to identify the alleged second assailant meant that the charge of gang defilement was not proved. There was no evidence tendered before the trial court to prove that the alleged assailant was well known to the appellant as held by the court. And the motive thereof taking into account the complainants account that the appellant initially seduced him having removed the child he was sleeping with on the floor, which he initially resisted based on the age of the appellant and gave in when the same started to touch his penis to create an erection and when it started, in his own words he went on until “he poured inside her vagina” and in cross examination it took thirty minutes! 36.On the appellants defence e , whereas the court found and held that the appellant did not establish what the complainant and his family would have gained or benefitted from framing the appellant , there are two pieces of evidence which the court did not take into account, one being the fact that the complainant’s mother allegedly threatened to deal with the appellant whom she considered as “: husband snatcher “, the role of the victim’s father which the court considered far fetched when looked at against the evidence of DW2 and the appellant’s claim that when he brought her to Nairobi , he took her to the house of another woman, and that as per DW2 there is a time he wanted the appellant top go back to the village and spread leaflets to that effect in the estate . 37.I have also looked at the complaint’s mother’s attitude towards the appellant “Ann was a house help to ….. my mother in law in Emuhaya. Ann was picked by Douglas from up country and bought to Nairobi to work here…… I wasn’t involved with Ann when she was in Nairobi . I never knew her …… I wasn’t relating to her when she was in Emuhaya. My husband was the one who was relating to her . I do not know how they were relating with my husband “ when looked at against the fact that she had been declared dead so as to entice the appellant to come to Nairobi and be her husband’s wife , I shall say no more, than that the conviction of the appellant was not safe and free from error and cannot stand, this being a criminal case where the prosecution is supposed to prove beyond reasonable while the appellant is only required to raise probable cause , which ably did. 38.The appeal against conviction is therefore allowed and the same set aside. 39.On sentence , the same remains at the sole discretion of the trial court and the court having imposed that which the law grants the same, I would not have interfered with the sentence, save for the fact that the appellant was entitled to the period served in remand custody under the provision of section 333(2) of CPC but having allowed the appeal on conviction the sentence herein has no foundation to stand on and is quashed. 40.Before penning off this judgement the court calls upon social researchers to examine the place and the role of house helps in society and what they do to the men of the home. In this matter , the complainant’s father and the husband of his mother of 16 years standing, took the appellant from the village where she was working for his mother with all her five children as a wife and would visit her four times in a month. Having initially taken her to the house of some other woman called Agneta whom he introduced as his mother’s cousin but which her intuition showed to be his wife , what a total man ! while PW3 the Complainant’s wife of 16 years , would want the court to believe that she did not know of her existence despite the fact that the victim would be visiting her with her husband ! 41.Sarah in the bible had her Hager the proud mother of Ismael, Jacob had Bilhah and Zilpah , while Bill Clinton had Monica Lewinsky while JF Kennedy had Mimi Alford while at the white House in the name of Interns and the story continues as the judgement set for 23rd July 2026 in Criminal Appeal no E166 of 2025 ,will show. 42.In the final analysis I allow the appeal both on conviction and sentence, the appellant is set free forthwith unless otherwise lawfully held. 43.And it is ordered DATED SIGNED AND DELIVERED THIS 21st DAY OF JULY 2026J WAKIAGAJUDGEIn the presence ofCourt Assistant - IreneMs. Kariuki for the StateMr. Ouko for the appellantAppellant present virtually from Langata Women.