Okemwa & another v Republic (Criminal Appeal 98 of 2020) [2026] KECA 183 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the men's appeal against a 30-year gang defilement sentence, confirming that second appeals only address legal errors, not facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellants were accorded an opportunity to cross-examine the complainant
- 2.whether the offence of gang rape was established beyond reasonable doubt
- 3.whether the appellants' alibi defence was considered by the two courts below
- 4.whether the charge sheet was defective
- 5.whether the prosecution deliberately avoided to avail key witnesses
- 6.whether there is any basis for this Court to interfere with the sentence
Key legal issues
#Whether the failure to afford cross-examination of the complainant, conceded by the prosecution, warranted allowing the appeal
No; the ground was raised for the first time in the second appeal and is precluded.
Although the prosecution conceded the appeal on the basis that the appellants' Article 50(2)(k) right was violated, the court held that an appellate court is not bound by a concession. On scrutiny of the record, the issue was never raised before the trial court or the first appellate court. Raising it now would require factual re-evaluation and would turn the Court of Appeal into a first appellate court, disrupting the orderly progression of litigation.
Whether gang rape under section 10 of the Sexual Offences Act was proved beyond reasonable doubt
Yes; all ingredients were proved and the concurrent findings below could not be disturbed.
Section 10 embodies joint liability with common intention. Evidence showed the appellants acted jointly with common intention in defiling the complainant. The complainant recognized the appellants by name; age of 7 years was proved by uncontroverted testimony; penetration was established by her credible evidence corroborated by medical evidence. Concurrent findings of fact by the two courts below bind the second appellate court.
Whether the charge sheet was fatally defective for omitting 'one after another' or 'in turns'
No; no prejudice or failure of justice was shown.
The charge sheet could not even be located in the record, but the first appellate court had found the charge was amended under section 214 of the Criminal Procedure Code and read afresh with an opportunity to recall witnesses. Prejudice, not technicality, is decisive; the appellants' cross-examination showed they understood the charges, so section 382 precludes reversal absent failure of justice.
Whether the failure to call Andrew Osoro and Dr. Faith Ogeto undermined the prosecution case
No; the prosecution need not call every possible witness.
The court applied the test that the effect of not calling a witness must be assessed against the elements of the offence and whether the evidence on record left gaps the uncalled witnesses would have filled. Nothing suggested their evidence would have been adverse to the prosecution, so no adverse inference arises under the Bukenya principle relied on by the appellants.
Whether the 30-year sentence should be interfered with
No; severity of sentence is a matter of fact outside second-appeal jurisdiction, and the sentence was lawful and even lenient.
Under section 361(2) of the Criminal Procedure Code, severity of sentence is a question of fact. Sentencing lies in the trial court's discretion; interference is permissible only for material misdirection or a shocking sentence. The 30-year term for gang defilement of a 7-year-old, where the statutory minimum is 15 years, was upheld, the court noting it could not enhance absent a notice of enhancement.
Legal principles established
#- On second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless founded on no evidence or such that no reasonable tribunal could have reached them.
- An appellate court in a criminal appeal is not bound by the prosecution's concession and must independently review the case.
- New grounds raised for the first time in a second appeal, especially those requiring factual re-evaluation, will not be entertained.
- Ingredients of gang rape under section 10 of the Sexual Offences Act: joint action by more than one person with common intention, and actual rape or defilement by one or more of the group suffices to render all liable.
- An intact hymen is not conclusive evidence of absence of penetration; slight penetration suffices, and penetration may be proved by the credible testimony of the complainant alone.
- Omission of words such as 'one after the other' or 'in turns' from a charge sheet does not render it fatally defective absent prejudice or failure of justice.
- The prosecution is not obliged to call every possible witness; failure to call a witness warrants an adverse inference only if the uncalled evidence would have filled gaps or been adverse to the prosecution.
- An appellate court may not interfere with a lawful sentence absent material misdirection or a sentence that is shocking, startling, or disturbingly inappropriate.
Court orders
#- 1.The appellants' appeal against conviction and sentence is dismissed in its entirety
- 2.Orders accordingly (judgment dated and delivered at Kisumu on 30th January 2026)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Criminal Appeals Nos. 114 of 2011 and 115 of 2011 (consolidated)
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
- Consolidated with
- High Court Criminal Appeal No. 114 of 2011, High Court Criminal Appeal No. 115 of 2011 (consolidated below)
Relief refused
#Setting aside of conviction and 30-year sentence
Ingredients of gang rape under section 10 of the Sexual Offences Act were proved; concurrent findings of fact by the two courts below could not be disturbed on a second appeal
Concession-based acquittal on Article 50(2)(k) fair-trial ground
The ground was raised for the first time on second appeal and was not raised before the trial court or first appellate court
Reduction of sentence on ground of severity
Severity of sentence is a question of fact outside the Court of Appeal's jurisdiction on second appeal under section 361(2) of the Criminal Procedure Code
Costs
No costs order made; this being a criminal appeal, the judgment ends with 'Orders accordingly' without any costs award.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we find that the appellants' appeal against conviction and sentence is without merit and the same is hereby dismissed in its entirety.
Orders accordingly.
This being a second appeal, this Court is mandated under Section 361(1) of the Criminal Procedure Code to consider only issues of law.
an appellate court is not bound by the prosecution's concession in a criminal appeal because its role is to independently review the entire case for errors of law or fact, ensuring justice is served.
It is important to underscore that an intact hymen is not conclusive evidence of absence of penetration.
in as much as the particulars did not capture the words "one after the other" or "in turns," in our view, the absence of the said words on the charge sheet did not render the charge sheet fatally defective.
this Court can only interfere with the sentence imposed by the trial court where it is vitiated by a material misdirection or where the it can be described as shocking, startling, or disturbingly inappropriate.
Issues in the judgment
#The judgment attributes the quotation from Ashok Kumar vs State of Haryana to 'the Supreme Court of South Africa' although the citation is to the Supreme Court of India (SCC).
The judgment contains internal inconsistencies in citations: the Bukenya citation is garbled ('919720 E.A 549'), the prosecution concession refers to 'Article 50 (k)' while the court refers to 'Article 50 (2) (k)', and the judgment refers to the prosecution's failure to call 'the complainant's uncle' while the appellants described Andrew Osoro as 'the first person to see the victim after the incident'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okemwa & another v Republic (Criminal Appeal 98 of 2020) [2026] KECA 183 (KLR)", Case Analysis (2026). Criminal Appeal (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/183/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.