Abdhi Masaai Chemangenyi v Republic

fabrications; that the learned Judge improperly shifted the burden of proof onto him, failed to consider his defence, and neglected to take into account the mitigating circumstances. He also alleges that the sentence imposed is harsh and oppressive, and that his fundamental right to legal representation was infringed, as he was not informed of this rights. 5. The respondents in their submissions dated 3rd August 2025 and filed by Mr. Cletus Akelo learned prosecuting counsel, contend that the appeal is incompetent in law, constitutes an abuse of the court process, and is devoid of merit. They assert that the appellant failed to file a proper memorandum of appeal and has not demonstrated any grounds upon which the decision of the courts below should be disturbed. They urge the Court to dismiss the appeal and uphold both the conviction and sentence. 6. A summary of the evidence presented in the trial court is that the victim JN., who testified as PW1, was aged 15 years and in class seven at the time of her testimony. She told the court that she and the appellant were lovers, and had sexual encounter on two occasions. 7. PW2, NL, the father to PW1, confirmed that the appellant had initiated marriage negotiations through an intermediary to negotiate for the payment of dowry in the form of cows for the intended marriage between the appellant and PW1. When however, the appellant later appeared with PW1 for purposes of dowry negotiations, he was arrested. 8. PW3, Phelemon Kentai, was the boda boda operator who ferried both the appellant and PW1 to Ololchani for the purpose of dowry negotiation. The appellant had stayed with PW1 for about a week before embarking on that trip, but upon arrival at their destination the appellant was arrested. 9. PW4, Paul Kaiyok Ruto was a village elder and his home had been designated as the venue for the dowry negotiations. He confirmed that the appellant arrived on a boda boda with PW1 intending to seek her parents’ consent and blessings for their marriage. He was however, arrested. 10. PW5, Police Constable Mabel Onsaringo, a CID officer based at Kilgoris, was on duty on 28th April 2016, when PW2 accompanied by PW4 arrived at the police station with PW1 and the appellant in tow and reported that PW1 had been defiled by the appellant. Both PW1 and the appellant were booked at the station. PW1 was taken to hospital the following day for medical examination and it revealed that her hymen was broken and there was presence of blood stains, and a whitish discharge in her genitals. A P3 form was filled confirming that PW1 had been defiled. An age assessment conducted on her established that she was a minor. 11. PW6 Festus Kurgat, was a Clinical Officer on duty at the [Particulars Witheld] District Hospital on 29th April 2016, when PW1 was escorted to the health facility by a police officer in the company of a guardian with allegations of defilement. Upon examination, he observed that PW1’s hymen was broken. Fresh blood stains and a whitish discharge were visible. He formed the opinion that defilement had occurred. He completed and signed a P3 form in that regard which he produced together with the treatment notes in evidence. He also conducted an age assessment test on PW1 using the dental formula and concluded that she was underage. 12. In his defence, the appellant stated on oath that on the day he was arrested, he was returning from working on the farm riding as a pillion passenger on a motorbike, alongside a certain girl when he was nabbed on allegations that he had defiled her. He maintained that he did not know PW1. He stated that he had previously stayed with the son of PW2 and that on an earlier occasion, they had been taken to the farm where they were threatened with assault. The appellant stated that he was unaware of any grudge between himself and PW2, save for an earlier confrontation in which he questioned him for searching a house in the absence of its owner. He called no witnesses. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/800/eng@2026-04-24 2

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13. When the appeal came before us for hearing in plenary on 3rd September, 2025 via the virtual platform, the appellant was present in person at Nakuru Main Prison, while Mr. Njeru, learned Senior Assistant Director of Public Prosecution (SADPP), held brief for Mr. Akelo, learned prosecuting counsel. They each gave brief highlights. The appellant stated that he had already served nine years out of his twenty years’ sentence and wished to appeal only on sentence. In particular that the one year he spent in remand before conviction be taken into account. The respondent stated that twenty years is the minimum sentence provided by the law and urged us not to interfere with it. 14. This being a second appeal, the jurisdiction of this Court is limited to matters of law only, by the dictates of Section 361 of the Criminal Procedure Code. These principles that guide second appeals are well settled and have been pronounced by this Court in a myriad cases. We have in mind a case such as Karingo v Republic [1982] KLR 213, where the Court held that on a second appeal, it will not normally interfere with concurrent findings of fact by the two courts below, unless it is demonstrated that the findings were based on no evidence, or on a misapprehension of the evidence, or that the courts acted on wrong principles in reaching those findings. 15. Similarly, in Chemagong v Republic [1984] KLR 611, the Court reiterated that a second appeal must be confined strictly to issues of law and that the Court will only interfere with findings of fact where it is shown that there was no evidence to support the findings, or where the conclusions drawn from the evidence were plainly unreasonable. 16. With this mandate in mind, we have carefully considered the record, the grounds of appeal, the rival submissions and the law. We note that although during the hearing the appellant stated that he only wished to appeal on sentence, nonetheless, since he was not represented, we examined all his grounds to see if they may avail him any reprieve. His first set of complaints are that the prosecution failed to prove the case against him beyond reasonable doubt; that the case was riddled with irregularities, inconsistencies, and fabrications; and, that the burden of proof was improperly shifted onto him. 17. It is evident that his umbrage with this ground is with the manner in which the evidence was evaluated, the credibility of the witnesses, and the conclusions drawn from the factual matrix presented before the trial court. These are all matters of fact. 18. This being a second appeal, it bears repeating that by dint of the provisions of section 361 of the CPC, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court of facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered, or they failed to consider matters they should have considered, or that looking at the evidence as a whole, they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. (See also - Karani v Republic [2010) eKLR). 19. The appellant has not demonstrated any misdirection in law, or misapplication of legal principles, or violation of statutory or constitutional provisions that would warrant the intervention of this Court. Both the trial court and the first appellate court independently analysed the evidence and arrived at concurrent findings that the elements of defilement were proved and that the offence was proved beyond reasonable doubt. We find no error of law in the manner in which the two courts arrived at their conclusions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/800/eng@2026-04-24 3

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20. On the complaint that his defence was not considered the record refiects that it was considered as follows: “ In light of the testimony of the witnesses I have set out, the appellant’s defence was sterile as he did not give a reasonable explanation why he was with PW1 for the period and why he was taking her ‘dowry negotiations’. I am satisfied therefore that the appellant did an act of penetration to PW1. The conviction is therefore affirmed.” The appellant’s defence was therefore, properly considered by the two courts below and dismissed as having not impeached the credible and corroborated evidence of the prosecution. 21. On the ground that the appellant’s fundamental right to legal representation was infringed, as he was not informed of it, we note that he was heard by an impartial forum; he was informed of the charges he was facing; he was presumed innocent until he was finally convicted; he participated in the proceedings, cross-examined witnesses and tendered his defence. Therefore, although he was not informed of the right to legal representation, there is no miscarriage of justice demonstrated. 22. The final ground is that mitigating circumstances were not taken into account and the sentence imposed was too harsh and excessive. On a second appeal, the Court will only delve into matters of sentence if it is proved that either the sentence was enhanced by the High Court, or that the subordinate court had no power to pass that sentence. 23. Our view in this matter is fortified by the decision in Simon Karanja Kiarie v Republic [2014] eKLR, where this Court held that: “ The appellant herein is not challenging legality of the sentence that was meted out. He is merely arguing that the same was severe and urges this Court to reduce it to the period already served. This Court has severally held that in such an instance it lacks jurisdiction to interfere with a lawful sentence. See Raphael Kavoi Kiilu v Republic [2010] eKLR, Zacharia Waithaka Mwaura v Republic [2010] eKLR. “ Jurisdiction is the bedrock of any court decision and without it a court has no power to do anything, other than to dismiss the matter before it, as we hereby do in respect of this appeal.” 24. The appellant herein challenges his sentence on grounds that it was harsh and oppressive. In his oral highlight, he also urged us to consider the one year he spent in custody during trial. We note that the sentence passed was one which the trial court was legally mandated to impose under section 8(3) SOA, and the High Court did not enhance, but upheld it because it was satisfied that it was an appropriate sentence. We therefore, find no reason to interfere with the sentence on the basis of severity. 25. We can however, intervene to give effect to section 333(2) of the CPC. It is trite law that where an accused person has been held in custody prior to conviction and sentence, the sentencing court is required to take that period into account when determining the appropriate sentence. Section 333(2) of the CPC provides that: “ Where a person has been found guilty and sentenced to imprisonment for a term, the Court, before which such person is convicted, shall state in open court whether or not any part of such term is to be deemed to have been served in custody prior to the sentence; and if any part thereof is so to be deemed as served, the Court shall state the period thereof.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/800/eng@2026-04-24 4

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The rationale for this provision is grounded in the principle of fairness. A convict should not be compelled to serve twice for the same period of incarceration by serving some of it in remand custody. 26. Upon a careful perusal of the record, it is apparent that while the trial court imposed a term of twenty (20) years’ imprisonment, the judgment is silent on the period the appellant spent in custody prior to sentence. The first appellate court affirmed the conviction and sentence without expressly considering whether the remand custody period had been properly credited under Section 333(2). The omission by both courts amounts to an error of law. 27. This omission is not a trivial procedural oversight. It is a failure to comply with a statutory requirement. Failure to properly account for pre-sentence custody is a misdirection that calls for interference on appeal. As held by this Court in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, failure to meaningfully account for the period an accused person spent in custody under Section 333 (2) CPC is an error of law. In Aywa v Republic [2024] KEHC 615 (KLR) and Kamau v Republic [2024] KEHC 256 (KLR), the Court credited the custodial period against the sentence as required by law. The courts have held that where the period of custody is not credited, the appropriate order is to adjust the sentence so that it runs from the date of arrest, thereby giving effect to Section 333(2) CPC. 28. Therefore, while we find that this appeal raises no other arguable point of law within the jurisdiction of this Court, we allow it to the extent necessary to give effect to Section 333(2) CPC. The appeal is dismissed in all other respects. Consequently, the conviction of the appellant for the offence of defilement is upheld and the sentence of twenty (20) years’ imprisonment shall include the period the appellant spent in remand prior to sentencing. 29. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. P. NYAMWEYA ......................... JUDGE OF APPEAL L. ACHODE ......................... JUDGE OF APPEAL J. MATIVO ......................... JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/800/eng@2026-04-24 5

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