https://new.kenyalaw.org/akn/ke/judgment/keca/2026/902

Mchanga v Republic (Criminal Appeal E010 of 2024) [2026] KECA 902 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 902 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E010 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Simon Kidego Mchanga Appellant and Republic Respondent (Being an appeal from the Judgment and Orders of the High Court of Kenya at Voi (J. N. Onyiego, J.) delivered on 28th July 2023 in Criminal Appeal No. E008 of 2022) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Voi (J. N. Onyiego, J.) delivered on 28th July 2023 in Criminal Appeal No. E008 of 2022 by which the learned Judge partly upheld the judgment of the Senior Principal Magistrate’s Court in Voi (D. Wangeci, PM) delivered on 20th May 2021 in Sexual Offences Case No. 1 of 2020. 2.In its judgment, the trial Magistrate’s court had convicted the appellant as charged with the offence of gang defilement contrary to section 10 of the Sexual Offences Act and sentenced him and his co-accused, one Nicholas Musya Mbuthu alias Ngima, to 30 years imprisonment. 3.The particulars of the offence were that, on 31st December 2019 at Maungu Trading Centre in Voi Sub County, within Taita Taveta County, the appellant and the co-accused intentionally and unlawfully caused their penis to penetrate the vagina of IME, a child aged 17 years. 4.The appellant and his co-accused also faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act. The particulars of the alternative charge were that, on the date and at the place aforesaid, they intentionally and unlawfully touched the vagina of I.M.E, a child aged 17 years, with their hands contrary to section 11(1) of the Act. 5.The appellant and his co-accused denied the charges whereupon the trial proceeded with the prosecution calling five (5) witnesses, including the complainant. The appellant and the co- accused did not call any witnesses in their defence. 6.For coherence, we hereby summarise the prosecution witnesses’ testimonies in the sequence in which the events culminating in the incident of the alleged gang rape unfolded. 7.The complainant (PW5) testified as the fifth prosecution witness and stated that, at around 8pm on 30th December 2019, she was sent away by her aunt from her (the aunt’s) residence in Mtwapa, Kilifi; that she proceeded to board a transit lorry heading to Kitui to live with her grandmother; that, on arrival at Maungu, the driver informed her that he would not be proceeding to Kitui; that she had to alight at Maungu; that, when she alighted, she was approached by the appellant, who greeted her; that she did not respond since she did not know him; that the appellant suddenly slapped her, accusing her of being rude; that, startled and bewildered, she quickly crossed the road and met the co-accused who pretended to offer her some assistance; that, after informing the co-accused of her predicament, he told her that nobody would be of any help to her; that, at that moment, the co-accused grabbed and carried her on his shoulders; that the appellant went his way; and that the co-accused took her to a deserted house, beat her up, tore her clothes, undressed and defiled her. 8.PW5 further testified that the co-accused defiled her repeatedly until about 3:00 am; and that, when he finished and left her stark naked, she fled and met a lady who helped her with a lesso and, thereafter, with some clothes. It was her evidence that she explained to the said lady what had happened to her and described the person who had sexually assaulted her; that the said lady told her that she knew the person she had just described; that, the very next morning, she left the said lady’s house and proceeded to report the incident at Maungu Patrol Base; that, while on her way to the Base, she spotted the co-accused, who saw her and began chasing her; that PW5 managed to evade him and made it to the Base; that she reported the incident, and was later escorted to hospital for medical examination; and that she was found to be pregnant before she was defiled. 9.The arresting Officer, PC Joseph Menza (PW2) attached to Maungu Patrol Base, stated that, on 31st December 2019 at around 7:30 am, PW5 arrived to report a case of defilement by two men; that, after interrogating her, the incident report was booked in the O.B; that his colleague, one PC Monica, later escorted PW5 to Maungu Health Centre for treatment; that, at around 10:00 am on 1st January 2020, the appellant was arrested at Kasighau Stage; and that, on the same day at around 4:30pm, while in the company of one Corporal Yusuf Ng’ang’a, they managed to arrest the co- accused at Maungu Kwa Reli in Ndovuni Area and escorted both to Voi Police Station for further investigations. 10.The investigating officer, Corporal Elma Mtwana (PW3) attached to Voi Police Station, testified that, at around 11:00 am on 31st December 2019, officers from Maungu Patrol Base presented PW5 at the station alleging that she had been defiled; that PW5 narrated to her what had transpired the previous day; that PW3 later escorted PW5 to Moi County Referral Hospital for treatment and medical examination; that PW3 was later escorted back to the station to record her statement; that, on 1st January 2020, the appellant and the co-accused were arrested and brought to Voi Police Station; that PW3 was able to identify the appellant and his co-accused; and that, when the co-accused was arrested, he was wearing PW3’s t-shirt. 11.PW4, PC Peter Maina of Maungu Patrol Base, testified that, at around 10:00 am on 1st January 2020, he and one PC Mutai proceeded to the co-accused’s rental house; that, on arrival, they found the house unlocked, but that the co-accused was not in; that they managed to recover men’s clothes, a girl’s clothes, sandals and a jerrican, which they took to the station; that the girl’s clothes, included two blouses – one white and the other flowered, white shorts, blue jean shorts, a black panty, a black top and a pair of pink open shoes, which PW5 identified as hers; and that the men’s clothes consisted of blue jeans, a belt, a black shirt, a yellow and black jacket and a pair of white shoes. PW4 produced all the items in evidence at the trial. 12.Joto Nyawa (PW1), a Clinical Officer at Moi County Referral Hospital, testified that PW5 was presented at the facility alleging to have been “gang raped”; that upon examining her, he established that she was 17 years old. According to PW1, the complainant had a swollen labia majora, tender and bruised inner vaginal walls, a bruised labia minora, her hymen broken – though not freshly, white discharge, no blood noted, no spermatozoa, and a pregnancy test came back positive. Accordingly, PW1 concluded that PW5 had been defiled. It was his testimony that he recorded his findings in treatment notes and a PRC Form, which he subsequently used to complete PW5’s P3 form. PW1 produced both documents as exhibits before the trial court. 13.At the close of the prosecution case, the learned Magistrate found that the appellant and his co-accused had a case to answer and put them on their defence. 14.The co-accused (DW1) gave a sworn statement in his defence, which was limited to a narrative of how and when he was arrested, and that he knew nothing about the charges levelled against him before the trial court. 15.In his defence, the appellant (DW2) gave a sworn statement and stated that he was a boda-boda operator; that, around midnight on 31st December 2019, he was at the stage; that he saw PW5 followed her and greeted her; that PW5 responded to his greetings in a rude manner; that he informed PW5 that her behavior was wrong and left. The appellant further testified that, on 1st of January 2020 at around 10 am, he was arrested, brought to court and charged. He denied committing the offence. 16.In its judgment delivered on 20th May 2021, the trial court (D. Wangeci, PM) held that, in light of the overwhelming evidence against the appellant and the co-accused, their defence amounted to a mere denial, and that the prosecution had proved its case against them on the required standard. Consequently, the trial court convicted both as charged and sentenced them to 30 years’ imprisonment. 17.Aggrieved by the trial court’s decision, the appellant lodged an appeal in the High Court at Voi in Criminal Appeal No. E008 of 2022, which was later consolidated with his co-accused’s Criminal Appeal No. E062 of 2021. In his appeal, the appellant faulted the learned trial Magistrate for failing to: consider that the age of the complainant was not ascertained; appreciate that the evidence tendered did not support the charge; appreciate that penetration was not proven; and to consider his defence. 18.In its judgment dated 28th July 2023, the High Court (J. N. Onyiego, J.) found and held in regard to the appellant that, in a charge for gang defilement, the prosecution was required to prove that the offence was committed in association with another or others, which it did; that, in addition to establishing the ingredients for the offence of defilement, the Court was required to establish whether the accused persons were in association with one another, or had common intention; that the appellant was responsible for assaulting PW5, saw the co-accused intervene, carry her away and later defiled PW5; that the appellant having known the possibility of PW5 being injured, reconciled to that fact that led to the co-accused sexually assaulting PW5; and that, in that regard, the concept of common intention became applicable. 19.On sentencing, the learned Judge noted that the law provides for a minimum sentence of 15 years for the offence; and that no exceptional circumstances existed to warrant enhancement to a more punitive sentence. Accordingly, the court upheld the conviction but set aside the sentence imposed by the trial court and substituted it for 15 years imprisonment to run from the date of sentencing in the lower court. 20.Dissatisfied, the appellant moved to this Court on six grounds set out in his undated “Grounds of Appeal,” namely that the “appellate judge” erred in law and fact: by upholding the conviction without considering that the appellant’s identification was not established; by failing to observe that some witnesses were not cross-examined nor recalled; by failing to appreciate that his conviction was based on circumstantial evidence; by failing to appreciate that crucial witnesses were never availed by the prosecution; by failing to consider his defence; and by imposing a harsh and excessive sentence. 21.In addition to the grounds aforesaid, the appellant filed undated “Supplementary Grounds of Appeal” containing two grounds, namely that the learned judge failed to: consider an “error on the face of the judgment; and to note that the charge sheet was defective. 22.In support of his 2nd appeal, the appellant filed undated written submissions citing three judicial authorities, namely: Maingi & 5 Others v Director of Public Prosecutions & Another [2022] KEHC 13118 (KLR) for the proposition that, to the extent that the Sexual Offences Act prescribes minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of Article 28 of the Constitution; and Omambia v Republic [1995] KECA 156 (KLR); and David Ngugi Mwaniki v Republic [2001] eKLR, both on the fatal effects of a duplex charge. 23.Opposing the appeal, the Assistant Director of Public Prosecutions, Mr. Birir Kimaiyo, filed written submissions dated 13th October 2025 citing four judicial authorities, namely: Njoroge v Republic [1982] KLR 388; and Karani v R [2010] 1 KLR 73 on this Court’s mandate on second appeal; PON v Republic [2019] eKLR, submitting that circumstantial evidence is as good as any evidence; and Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR on this Court’s power to interfere “with the exercise of the discretion of the court appealed from,” arguing that sentencing is essentially an exercise of discretion and that a sentence is a matter of fact and not of law. Learned counsel prayed that we dismiss the appeal. 24.Our mandate on a second appeal, as is the one before us, is confined to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo v Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 25.Having carefully considered the record of appeal, the impugned judgment, the respective submissions and the law, we find that this appeal stands or falls on our holding on only one ground namely whether the appellant’s defense was considered. 26.We need not address ourselves to the remaining grounds of appeal, all of which raise issues of factual evidence, and which we cannot re-open on 2nd appeal. We also take to mind the fact that, except for the allegation that his defence was not considered, and that the sentence meted on him was excessive, all the other grounds are raised for the first time on 2nd appeal to this Court even though some relate to points of law, but on which we cannot pronounce ourselves. 27.Addressing himself to the prejudicial effect of new points of law raised for the first time on appeal, Forbes VP had this to say in Alwi A Saggaf v Abed A Algeredi (1961) EA 767 CA 610:“… these are assumptions which were never tested at the trial. The minds of the parties simply were not directed to this issue which, apparently, was raised by counsel for the respondent for the first time in his reply at the end of the hearing of the first appeal. In the circumstances, it appears to me that the appellant had no fair notice of this issue, and that the court cannot be satisfied that the facts, if fully investigated, would have supported the new plea.In my view, accordingly, the learned judge ought not to have allowed this issue to be raised, or to have decided the appeal on it.” 28.In the same vein, this Court in Alfayo Gombe Okello v Republic [2010] eKLR underscored the importance of raising all issues in contention at the earliest opportunity at the trial and had this to say:“… the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 29.In Sudi Mnalo Mweke v Republic [2023] KECA 1527 (KLR), this Court identified itself with the holding by the predecessor to this Court in Alwi Abdulrehman Saggaf v Abed Ali Algeredi (supra) where, in its holding, the Court laid down the guiding principle that the course of taking on appeal a point of law which has not been argued in the court below ought not to be allowed unless the court is satisfied that the evidence upon which they are asked to decide established beyond doubt that the facts, if fully investigated, would have supported the new plea. The justification for that holding was that:“The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below.It (has) been clear for nearly a century and perhaps more, that the litigant could not take a completely new point of law for the first time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.” 30.Be that as it may, we take to mind the fact that, whereas section 361 of the Criminal Procedure Code bars the re-opening of findings of fact reached by the two courts below for reconsideration on second appeal, this Court may nonetheless pronounce itself thereon, but only in the exceptional circumstances highlighted in the case of Adan Muraguri Mungara v Republic [2010] eKLR where the Court set out the exceptional circumstances under which it will disturb concurrent findings of fact by the trial court and the first appellate court in the following words:“As this court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. That would mean that the decision is bad in law, thus entitling this Court to interfere.” [Emphasis added] 31.That said, and for the avoidance of doubt, it would be remiss of us not to pronounce ourselves on the ingredients of gang defilement for which the appellant was convicted. 32.The offence of Gang Rape is defined under Section 10 of the Sexual Offences Act No. 3 of 2006 as follows: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 offences 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.Two main ingredients of the offence with which the appellant was charged become clear from the foregoing provision:i.whether the victim is a minor or a child below the age of 18 years, or an adult, the offence is termed “Gang Rape,” and there is therefore no offence known as “Gang defilement;” andii.though not pronounced in the provision, it is an aggravating factor while sentencing if the victim is a child. 31.For the avoidance of doubt, the key ingredients for the offence of gang rape are: an act of rape or defilement, which means that there must be penetration of a genital organ by another’s genital organ however slight, and without consent; the offence must involve more than one perpetrator acting together or in concert, or with common intention; and the identification or recognition of the perpetrators as the real culprits. 32.The offence of gang rape is generally defined in case law as the commission of rape by two or more individuals acting in concert, which may include physical participation by all parties or the abetting of the act with a common intention. In effect, the level of involvement of each assailants is irrelevant as long as there is proof of common intention in the commission of the offence as was the case here (see-Chepkwony & 3 Others v Republic [2025] KECA 1544 (KLR); and the persuasive High Court decision in Mutiso & another v Republic [2025] KEHC 4043 (KLR), both of which outline the elements required for a conviction, including: proving the commission of rape or defilement, which is defined by penetration; lack of consent, which must be an agreement made freely and with capacity; the involvement of others in association or with a common intention, meaning that those who do not physically penetrate are equally guilty if acting with common intent; and positive identification of the perpetrators as was the case against the appellant and his co- accused. 31.With regard to the three main ingredients, to wit, the age of the complainant; the fact of penetration; and the identity of the perpetrators acting with common intention, we find nothing on the record to suggest that the findings of the two court’s below were based on no evidence or on perversion of evidence, or that their decisions were by any means bad in law (see - Adan Muraguri Mungara v Republic (supra)). 31.On the only two grounds raised before us, we hasten to observe that the appellant’s allegation that his defence was not considered, and that the sentence imposed on him was excessive, is tantamount to an invitation to re-assess, re-evaluate and pronounce ourselves on what are essentially factual matters of evidence, which are beyond our remit on 2nd appeal in the absence of any exceptional circumstances contemplated by this Court in the case of Adan Muraguri Mungara v Republic (ibid). 31.Having carefully examined the record of appeal, the grounds on which it was anchored, the rival submissions, the cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and orders of the High Court of Kenya at Voi (J. N. Onyiego, J.) delivered on 28th July 2023 is hereby upheld. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.F. TUIYOTT…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALF. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR