Dimo v Republic (Criminal Appeal 144 of 2019) [2025] KECA 536 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of a second appeal
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
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.
Compliance with section 333(2) of the Criminal Procedure Code
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
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.
Legal principles established
#- 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
#- 1.Appeal against conviction and sentence dismissed except on the point of sentence
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.