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Court of AppealDismissedSecond Appeal - Criminal Appeal (undated memorandum of appeal; number not stated in judgment)

Jommo alias Franco v Republic (Criminal Appeal E033 of 2022) [2026] KECA 935 (KLR)

Court of Appeal of Kenya
15 May 2026
1,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that good behaviour, remorse or family hardship cannot reduce the mandatory 20-year minimum sentence for defilement of a 14-year-old.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against sentence only, the conviction not being challenged. The appellant was convicted by the Senior Principal Magistrate's Court at Mumias of defilement of a 14-year-old girl contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and sentenced to twenty years imprisonment, the statutory minimum. The High Court at Kakamega dismissed his first appeal in its entirety. On second appeal, the appellant, appearing in person from Kitale Annex Prison, argued that he had been transformed, reformed and rehabilitated, was remorseful, was the sole breadwinner for a family of school-going children, and sought a non-custodial sentence partly to ease prison congestion. The respondent, through counsel, relied on written submissions and cited the Supreme Court's decision in Republic v Joshua Gichuki Mwangi upholding mandatory minimum sentences under the Sexual Offences Act. The Court of Appeal (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJA) reaffirmed the settled principle that sentencing is discretionary and interference is warranted only where the trial court acted on wrong principles, overlooked material factors, or the sentence was manifestly excessive. Holding that the twenty-year term was lawful, proportionate to the gravity of the offence, and consistent with deterrence and protection of children, and that mitigation could not override the statutory framework, the court dismissed the appeal. The decision of the High Court was affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal should interfere with the sentence of twenty years imprisonment imposed under Section 8(4) of the Sexual Offences Act on grounds of rehabilitation, remorse, family hardship and prison congestion

Key legal issues

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Whether rehabilitation, remorse and family hardship justify interference with a statutory minimum sentence on second appeal

Holding

No. The sentence of twenty years was the statutory minimum under Section 8(4) of the Sexual Offences Act, was lawful and proportionate, and mitigating considerations cannot override the statutory framework.

Reasoning

The court reiterated the settled principles on interference with sentence on appeal, relying on Ogalo s/o Owuora and Wanjema. The offence was grave: the victim was a 14-year-old child who suffered serious injuries requiring twenty days of hospitalisation. The Supreme Court's decision in Republic v Joshua Gichuki Mwangi reaffirmed the constitutionality of mandatory minimum sentences under the Sexual Offences Act, reflecting legislative intent to protect minors.

p. 3

Legal principles established

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  • Sentencing is a discretionary power of the trial court, and an appellate court will only interfere where the trial court acted on wrong principles, overlooked material factors, or the sentence is manifestly excessive; a lawful sentence within statutory limits will not be disturbed merely because the appellate court would have imposed a different one
  • Mitigating factors such as rehabilitation, remorse, family hardship and prison congestion do not override the mandatory statutory minimum sentences under the Sexual Offences Act

Court orders

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  1. 1.Dismissal of the appeal against sentence in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kakamega
Jurisdiction invoked
Second appellate jurisdiction over a criminal appeal limited to sentence, the conviction not being challenged

Relief refused

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Reduction of the twenty-year sentence or substitution of a non-custodial sentence on grounds of rehabilitation, remorse, family hardship and prison congestion

Mitigating considerations cannot override the statutory framework; the sentence was lawful, proportionate and within the prescribed limits

p. 3

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is that sentencing is a discretionary power of the trial court, and an appellate court will only interfere with it where it is shown that the trial court acted on wrong principles, overlooked material factors, or that the sentence is manifestly excessive in the circumstances of the case.
p. 3Threshold for appellate interference with sentence
While these are mitigating considerations, they cannot override the statutory framework.
p. 3Mitigation versus statutory minimum sentences
Accordingly, we are satisfied that the appeal is devoid of merit and we dismiss it.
p. 3Final orders - dismissal of appeal against sentence

Issues in the judgment

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minor

The judgment repeatedly misspells 'offence' as 'ofience' and 'officers' as 'oficers', and 'affirmed' as 'afirmed'; these appear to be typographical/OCR errors in the copy provided

minor

The memorandum of appeal is described as undated and no appeal number is stated, limiting citation precision

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, "Jommo alias Franco v Republic (Criminal Appeal E033 of 2022) [2026] KECA 935 (KLR)", Case Analysis (2026). Second Appeal - Criminal Appeal (undated memorandum of appeal; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/935/eng@2026-05-15

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