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Court of AppealPartially AllowedNot stated in the judgment· [2025] KECA 536 (KLR)

Dimo v Republic (Criminal Appeal 144 of 2019) [2025] KECA 536 (KLR)

Court of Appeal of Kenya
21 March 2025
1,880 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 gang rape conviction but ruled the man's 15-year sentence must count the months he spent in remand before sentencing.

What this practically means

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Executive summary

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The appellant, Fredrick Odhiambo Dimo, was convicted by the Ukwala Senior Resident Magistrate's Court of gang rape contrary to section 10 of the Sexual Offences Act and sentenced to 15 years' imprisonment. The particulars alleged that, in company with another (Boyi), he facilitated the defilement of a 13-year-old girl in Ugenya, Siaya County. His first appeal to the High Court failed; the learned judge held that although the girl was defiled by Boyi, the appellant was complicit in the scheme, having grabbed her by the neck, strangled and threatened her and taken her to the house where the defilement occurred. In this second appeal, the Court of Appeal (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJ.A) reiterated that a second appeal is confined to points of law and that concurrent findings of fact of the two courts below will not be disturbed unless based on no evidence. At the plenary hearing, the appellant pursued the appeal on sentence only, arguing that under section 333(2) of the Criminal Procedure Code the courts below ought to have factored in the period spent in remand custody. The State did not oppose. Relying on Ahamad Abolfathi Mohammed and Bethwel Wilson Kibor, the court held that "taking into account" custody time means reducing the sentence proportionately; a mere assertion while ordering the sentence to run from conviction amounts to ignoring that period. The appeal on sentence was allowed to the limited extent that the sentence commences from 26th September 2015, the date of arrest; the conviction was left undisturbed.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to points of law; the court will not disturb concurrent findings of fact unless they are based on no evidence

Reasoning

As a second appellate court, the Court of Appeal does not re-evaluate facts afresh. Its test is whether there was any evidence upon which the trial court could reasonably reach its finding. Here the court noted that although the minor was defiled by another person (Boyi), the High Court traced the chain of events showing the appellant strangled, threatened and delivered the complainant to the house where the defilement occurred, establishing complicity under section 10 of the Sexual Offences Act. No basis existed to disturb those concurrent findings.

p. 2
02

Compliance with section 333(2) of the Criminal Procedure Code

Holding

The courts below failed to factor into the sentence the period the appellant spent in remand custody; the sentence must commence from the date of arrest, 26th September 2015

Reasoning

The proviso to section 333(2) obligates sentencing courts to take account of pre-sentence custody. Following Ahamad Abolfathi Mohammed and Bethwel Wilson Kibor, the court held that failing to factor remand time produces excessive punishment disproportionate to the offence. The State did not oppose the prayer. The court therefore directed that the 15-year sentence commence from the date of the appellant's arrest, 26th September 2015, allowing the appeal only to that limited extent.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts unless based on no evidence
  • Courts sentencing an accused must take into account, in computing the sentence, the period spent in custody before sentence under section 333(2) of the Criminal Procedure Code; merely stating that the period is taken into account while ordering the sentence to run from conviction amounts to ignoring it

Court orders

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  1. 1.Appeal against conviction and sentence dismissed except on the point of sentence
  2. 2.Sentence to commence from 26th September 2015, the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code

Authorities

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Legislation

  • Sexual Offences Actsection 10
  • Criminal Procedure Codesection 333(2)
  • Penal Codesection 38
  • The Judiciary Sentencing Policy GuidelinesProviso to section 333(2) of the Criminal Procedure Code

Cases cited (3)

  • Karingo & 2 Others vs. Republic
    [1982] eKLR
  • Ahamad Abolfathi Mohammed & Another vs. Republic
    [2018] eKLR
  • Bethwel Wilson Kibor vs. Republic
    [2009] eKLR
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, confined to points 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, "Dimo v Republic (Criminal Appeal 144 of 2019) [2025] KECA 536 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/536/eng@2025-03-21

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