Ooko v Republic

3. Dissatised, the appellant appealed against his conviction and sentence in the High Court of Kenya at Homabay. In the judgment delivered on 30th March, 2022, the rst appellate court analysed and evaluated the evidence adduced before the trial court and found that the prosecution proved all the ingredients of the oence of delement. Accordingly, the appeal was found to lack merit and was dismissed. 4. The appellant is still aggrieved with the decision of the High Court and has preferred an appeal to this Court against both the conviction and sentence. The memorandum of appeal lists grounds including that: the rst appellate court erred in law by failing to hold that the age of the complainant and penetration were never proved against the appellant to the required standard; the rst appellate court failed to re-analyze and re-evaluate the whole evidence afresh and come to its own independent decision as held in Okeno vs. Republic (1972) EA 32; the rst appellate court failed to note that the appellant was not accorded a fair trial and hearing in contravention of Article 50(1) and (2) of the Constitution of Kenya; the rst appellate court failed to consider that the evidence was contradictory and inconsistent; the appellant was convicted on a defective charge that is incurable in terms of Sections 214 and 382 of the Criminal Procedure Code; the rst appellate court failed to consider that the prosecution’s failure to summon the complainant’s mother was because she would testify to the detriment of their case; the mandatory minimum sentence of 20 years as provided for under Section 8(3) of the Sexual Offences Act was inconsistent with Article 50(2) (p) of the Constitution as read with Sections 216, 329 and 333(2) of the Criminal Procedure Code; and the appellant’s right to equal benet and equal protection of the law under Article 27 was violated when the trial court failed to consider his mitigating circumstances. 5. When this appeal came up for hearing before us on 25th May, 2026, the appellant appeared virtually in person from prison and relied on his undated written submissions. The learned prosecution counsel Mr. Ogema appeared for the respondent and relied on their written submissions dated 20th May, 2026. The appellant further asked this Court to consider the period he served in remand when determining his sentence. In that regard, Mr. Ogema noted that the appellant was never released on bond during trial and conceded that this Court should compute the period the appellant spent in custody as part of the sentence in terms of section 333(2) of the Criminal Procedure Code, the appellant having been arraigned on 5th November, 2019. 6. Our role as a second appellate Court was stated by this Court in Karani vs. R [2010] 1 KLR 73 as follows: “ This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters they ought not to have considered or that 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.” 7. We have considered the grounds of appeal and the parties’ respective submissions. We sieve out the issues for determination to be whether the prosecution proved beyond reasonable doubt the ingredients of the oence of delement; whether the sentence imposed was lawful; and whether the appeal should be allowed. 8. To establish delement, the prosecution must prove beyond reasonable doubt that there was penetration of the complainant’s genitalia; the complainant is a child below the age of 18 years old; and, that the penetration was by the appellant. The High Court re-evaluated the evidence and arrived at https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1664/eng@2026-07-31 2

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concurrent ndings with the trial court as follows: the complainant PW1 and PW2 the clinical ocer who examined PW1 conrmed penetration; PW1 knew the appellant and the appellant was indeed the perpetrator; and, while PW1 testied that she was 15 years old, the exhibited birth notication showed that PW1 was born on 20th January, 2005 so that on the date of the delement on 2nd November, 2019 PW1 was about two months to attainment of 15 years of age. We have considered the evidence on record and nd that there was no material contradictory or inconsistent evidence about the age of PW1 as at the time of the delement contrary to the submissions by the appellant. Indeed, PW1 testied on 17th January, 2020 when she was due to attain 15 years of age on or about 20th January, 2020. 9. The appellant also submitted that the mother of PW1 ought to have testied and that failure by the prosecution to call her should be inferred to mean that her evidence would have been adverse to the prosecution case. We have examined the material on record which does not show that PW1’s mother was a crucial witness with likely relevant testimony and whose failure to testify would thereby displace the otherwise proved prosecution’s case. 10. We are therefore satised that the prosecution proved beyond reasonable doubt the ingredients of the oence of delement and there exist no basis for our interference with the concurrent ndings of the two courts below in that respect and the resultant conviction. 11. Section 8(3) of the Sexual Offences Act states that a person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The sentence imposed against the appellant was imprisonment for the minimum 20 years. In the circumstances, it was lawful and not manifestly harsh or excessive. 12. However, as conceded to by the respondent, the appellant was in custody throughout the trial. Section 333(2) of the Criminal Procedure Code states that prison sentences start on the day they are pronounced. Further, it also requires courts to reduce the nal sentence by the amount of time the convict already spent in police or remand custody before the trial ended. The appeal will partially succeed to the extent that sentence will run from the date the appellant was arrested on 3rd November 2019. 13. In the premises we conrm the appellant’s conviction and his sentence to imprisonment of twenty years but eective from 3rd November, 2019. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026. ASIKE-MAKHANDIA ......................... JUDGE OF APPEAL E. C. MWITA ......................... JUDGE OF APPEAL B. ONGAYA ......................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1664/eng@2026-07-31 3

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