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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 153 of 2015· [2020] KECA 937 (KLR)

Johnson Ogega Makori v Republic

Court of Appeal
31 January 2020
1,594 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a defilement conviction but cut a 20-year sentence to time already served, releasing the appellant.

What this practically means

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Executive summary

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The appellant was convicted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment by the Resident Magistrate's court at Ndhiwa. His first appeal to the High Court at Homa Bay (Majanja, J) was dismissed on 26th August, 2018, and he appealed to the Court of Appeal at Kisumu on five grounds: proof of age, proof of penetration, insufficiency of medical evidence, non-compliance with Section 169 of the Criminal Procedure Code, and failure to consider his defence. Before the Court of Appeal he additionally contended the intercourse was consensual and that he believed the minor was over eighteen. The court, comprising Koome, Sichale and Kantai, JJA, in a single judgment of the court, restated that a second appeal under Section 361(1)(a) of the Criminal Procedure Code is confined to matters of law and that concurrent findings of fact by the two courts below will not be disturbed unless based on no evidence, misapprehension of the evidence, or wrong principles. It held that P.W.1 was below eighteen years per the baptismal card produced by her father, that the parties lived as husband and wife and freely engaged in sexual intercourse, and that all elements of defilement were satisfied; the appeal on conviction was dismissed. However, on sentence, applying the Muruatetu dictum as adopted in Christopher Ochieng, and noting that P.W.1 considered herself a wife, her mother encouraged the union, and the appellant was himself a young man, the court varied the sentence to the period already served and ordered the appellant's forthwith release unless otherwise lawfully held.

Key legal issues

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01

Scope of a second appeal under Section 361(1)(a) of the Criminal Procedure Code

Holding

The Court is confined to matters of law; concurrent findings of fact on the minor's age and the elements of defilement cannot be disturbed.

Reasoning

Section 361(1)(a) restricts a second appeal to matters of law. The two courts below made concurrent findings that P.W.1 was below 18 years, supported by a baptismal card, and that the parties lived as husband and wife and engaged in sexual intercourse. No basis existed to disturb those findings.

p. 2
02

Whether the sentence of twenty years should be varied

Holding

The sentence was varied to the period already served, applying the Muruatetu dictum by parity of reasoning as adopted in Christopher Ochieng.

Reasoning

The court considered that P.W.1 considered herself a wife, her mother encouraged the union, the appellant was a young man of about twenty-one years, and the Supreme Court in Muruatetu outlawed mandatory sentences. Applying the reasoning in Christopher Ochieng, the court found it fit to interfere with the sentence.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, misapprehension of evidence, or wrong principles.
  • Sexual contact with a girl below the age of 18 years is criminalized regardless of the girl's own assertion of age or consent.
  • Following Muruatetu, courts may interfere with mandatory or severe sentences in sexual offences where circumstances justify it.

Court orders

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  1. 1.Appeal on conviction dismissed
  2. 2.Sentence varied from twenty (20) years imprisonment to the period already served
  3. 3.Appellant to be released forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Homa Bay
Homabay HC.CRA No. 3 of 2015
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Johnson Ogega Makori v Republic", Case Analysis (2020). Criminal Appeal No. 153 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/937/eng@2020-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.