Franklin Odoyo Shako v Republic
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming that second appeals only address legal errors and double jeopardy fails where charges involve different acts.
What this practically means
#Executive summary
#Key legal issues
#Scope of second appeal under section 361 Criminal Procedure Code
The Court's jurisdiction is strictly confined to questions of law; concurrent findings of fact by the two courts below are not disturbed unless founded on no evidence.
Relying on Karingo v Republic, the Court held its mandate on second appeal is circumscribed by section 361 of the Criminal Procedure Code, confining it strictly to questions of law. Concurrent factual findings on identification, penetration and age of the complainant therefore fell outside its remit and were not disturbed.
Raising new issues for the first time on second appeal
Grounds 1-3, raised for the first time on second appeal, were properly declined; trial by instalments militates against the Court's discretionary powers.
Following KCB v James Osede, Alwi A Saggaf v Abed A Algeredi, Alfayo Gombe Okello, Sudi Mnalo Mweke and Wachira v Ndanjeru, the Court held that a new point of law not argued below will not be entertained unless the evidence, if fully investigated, would clearly support the new plea. No such demonstration was made here.
Failure to give reasons for dismissing the defence
The High Court judgment contained elaborate analysis of the defence and reasons for its rejection; the Judge could not be faulted.
The Court found the impugned judgment replete with analysis of the alleged grudge defence, which the High Court described as unsubstantiated, a flimsy made up story, and an afterthought since the prosecution witnesses had not been cross-examined on it. There was thus no failure to give reasons.
Plea of autrefois acquit under section 138 of the Criminal Procedure Code
The plea fails: the Hola charge (November 2020) and the Malindi acquittal (January-March 2021) concerned different acts, so the trial was not barred.
Although the plea engaged the constitutional right under Article 50(2)(o) and merited consideration despite being raised belatedly, the two charges concerned separate and distinct acts at different times and places. Even identity of complainant and witnesses would be immaterial; no nexus existed between the facts, so the trial was proper.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions of law and will not disturb concurrent findings of fact unless shown to be founded on no evidence.
- A point of law raised for the first time on appeal will not be entertained unless the court is satisfied that the facts, if fully investigated, would have supported the new plea.
- A plea of autrefois acquit fails where the two charges concern different and distinct acts; similarity of complainant or witnesses is immaterial.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 6th May 2024 is upheld
- On appeal from
- High Court of Kenya at Garsen
- HCCRA No. E001 of 2023
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to questions of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Franklin Odoyo Shako v Republic", Case Analysis (2026). Criminal Appeal E038 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.