A man who had been sentenced to 20 years in prison for allegedly raping a woman with a mental disability has been acquitted after the High Court found that the charge against him was framed under the wrong law.
Justice FN Kyambia of the High Court in Malindi ruled on September 14, 2026 that the conviction of Shoka Jabil Chai was unsafe because the prosecution charged him with an offence that did not apply to the circumstances of the case.
Mr Chai had been convicted of rape under Section 7 of the Sexual Offences Act and sentenced to 20 years in prison.
The prosecution alleged that on January 28, 2022, in Kilifi County, Mr Chai intentionally raped SL.
The judge noted that rape of a person with a mental disability is provided for under Section 146 of the Penal Code.
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However, Justice Kyambia found that Section 7 of the Sexual Offences Act does not create the offence of raping a person with a mental disability. Instead, the section deals with rape or an indecent act committed in the presence of a family member, child or person with a mental disability.
“The person with mental disability was the victim and not a spectator,” the judge said.
Justice Kyambia said the trial court should have directed that the charge be corrected before proceeding with the case.
“The charge in the main charge was defective. This was a fatal defect and it occasioned a failure of justice,” the judge ruled.
The court also found another problem with the alternative charge of committing an indecent act with an adult.
The charge referred to the accused as Samuel Chome Ngumbao, a different person from Mr Chai.
“This portends that the prosecution and the investigating officer were not diligent in framing the charges,” Justice Kyambia said.
The High Court also raised concerns over how the complainant's evidence was presented during the trial. The prosecution had told the trial court that the woman was mentally unstable and could not testify, and asked that her mother be appointed as an intermediary.
The accused did not object, and the trial court approved the request.
But Justice Kyambia said the trial court had failed to follow the required procedure before declaring the woman a vulnerable witness and appointing an intermediary.
The judge said the court was required to satisfy itself that the witness was vulnerable and that testifying without assistance would expose her to undue mental stress and suffering.
The court was also required to establish the suitability of the proposed intermediary, including her knowledge, experience or relationship with the witness, before making the appointment.
The intermediary was also required to take an oath to faithfully communicate the substance of the vulnerable witness's evidence. None of these steps was properly followed, the judge found.
Justice Kyambia further observed that the evidence presented by the mother was based on what her daughter had told her, rather than the daughter’s evidence being properly conveyed through an intermediary.
“It is not the complainant testifying through her but it is the evidence of a witness based on what the complainant told her,” the judge said.
The court also noted that it was unclear from the record whether the complainant had appeared in court.
Justice Kyambia said the manner in which the woman's evidence was taken resulted in a miscarriage of justice and failed to meet the required threshold for protecting a vulnerable witness while also ensuring a fair trial for the accused.
“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 her mother as intermediary did not meet the legal threshold,” he said.
Mr Chai had appealed against both his conviction and the 20-year prison term imposed by the trial court.
