Ochieng v Republic (Criminal Appeal E120 of 2022) [2025] KECA 1905 (KLR) (7 November 2025) (Judgment) Neutral citation: [2025] KECA 1905 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPEAL E120 OF 2022 MS ASIKE-MAKHANDIA, HA OMONDI & AO MUCHELULE, JJA NOVEMBER 7, 2025 BETWEEN KENNEDY OTIENO OCHIENG ........................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (An appeal against the judgment and decree of the High Court of Kenya at Kisumu (F.A. Ochieng, J.) dated 30th March 2022 In HCCRA No. 62 OF 2019) JUDGMENT 1. The appellant, Kennedy Otieno Ochieng, was convicted by the Principal Magistrate’s Court at Winam of defilement under sections 8(1) and 8(4) of the Sexual Offences Act, the complainant being aged 17 years, and was ordered to serve 15 years imprisonment. He was not satisfied with the conviction and sentence and appealed to the High Court. The High Court (Fred A. Ochieng, J., as he then was) reevaluated the evidence and concluded that the appellant had been convicted on solid evidence which had proved all the ingredients of the offence of defilement. 2. On sentence, the learned Judge considered that the trial magistrate had taken into account the mitigating factors, the probation report and the sentencing policy Guidelines before handing down the punishment. It was found that the sentence was not unconstitutional. The appellant had raised the issue that the trial court had not taken into account the period he had spent in custody during trial, as commanded by section 333(2) of the Criminal Procedure Code. The appellate court calculated that the appellant had spent 74 days in custody and held as follows:“ 87. Save for the consideration under section 333(2) of the Criminal Procedure Code, the appeal lacks merit and is therefore dismissed.” https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1905/eng@2025-11-07 1
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3. To our understanding, direction was given to the prison authorities that, while calculating the 15 years prison term, the 74 days be deducted. 4. The appellant filed the present appeal asking this Court to revise the sentence by taking into account the provisions of section 333(2) of the Criminal Procedure Code. He further pleaded that he had learnt his lesson and that he had mended his ways; that being a first offender, the sentence should be reduced. 5. The victim, in this case was aged 17, and section 8(4) of the Sexual Offences Act provides that the sentence for a convicted person will not be less than 15 years in jail. Section 361 (1) of the Criminal Procedure Code bars this Court on second appeal from dealing with the question of the severity of the sentence, unless it is shown that the two courts below considered matters they ought not to have considered, or omitted to consider matters they should have considered, or where the sentence was harsh and excessive (see Kagere v Republic [2024] KECA 1157 (KLR)). It was not one of the grounds of appeal that the sentence was harsh and excessive. 6. The appellant received the minimum penalty provided for his indiscretion. This was done after considering the circumstances of the offence and mitigation. We find that the sentence was lawful and constitutional. 7. Consequently, we dismiss the appeal. DATED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER, 2025 ASIKE - MAKHANDIA ........................................ JUDGE OF APPEAL H. A. OMONDI ........................................ JUDGE OF APPEAL A.O. MUCHELULE ........................................ JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1905/eng@2025-11-07 2
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