Daniel Ochieng Otieno v Republic

was seducing him and that they had a love affair. On cross-examination, he stated that he sold the complainant’s phone for Kshs. 500. He additionally admitted to recording his statement and admission of the counts he was charged with at the police station. 6. The trial court observed that the prosecution’s evidence was consistent, firm and unshaken, and that they had proven their case against the Appellant beyond reasonable doubt. Moreover, the Appellant herein admitted to the charges during examination and cross-examination. Consequently, the Trial Magistrate convicted him of both counts and sentenced him to serve 30 years’ imprisonment for both counts to run concurrently. 7. The Appellant was dissatisfied and aggrieved by the sentences and he lodged an undated petition which was later amended and dated 22nd April, 2024 on the following grounds: 1. That, this Hon. Court be pleased to independently apply its discretion as prayed regarding the sentence judicial reduction. 2. That, this Hon. Court be pleased to unshackle the tied hands of the trial magistrate on the ambiguity of the sentence imposed. 3. That, this Hon. court be please to consider the (appellant) had no previous criminal records save for the one at hand thus a first offender. 4. That, this Hon. Court be pleased to indulge the duration spent in remand custody that's (2 months) 5. That, this Hon. Court be pleased to overlook that I am a young energetic man whose life will be ruined by the long incarceration to that effect. 6. That, this Hon. Court be pleased to reflect, attest and agonize that the appellant is the favorite child of the law hence very benefit goes to him. 7. That, the Hon. Court be pleased to consider that I would be prejudicial if the appellant serves part of substantial sentence and finally the appellant is allowed as prayed. 8. That, this Hon. Court be pleased to consider the conduct of the trial proceedings in order to balance the aggravating and mitigating circumstances that favors the appellant. 9. That, the Court be pleased to follow the recent judicial developments applied by many Courts in Kenya that has changed in tides in sentencing on matters of mandatory status (Minimum and Maximum) 10. That, this Hon. Court be pleased to consider (appellant) is regretting for his unprecedented deeds thus remorseful 11. That, this Hon. Court be pleased to graciously award for my humble prayers, pleadings and mitigating factors on the sentence reduction. 12. That, this Hon. Court be pleased to exercise the hands of leniency in the applicant's favor. 13. That, the Hon. Court be pleased to consider that I am ready and shall adhere to the conditional determination in that respect. 14. That, this Hon. Court be pleased to consider that the appellant is ready to restore and bestore reconciliatory links with the concerned parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8332/eng@2026-03-19 2

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Reasons Wherefore: he prayed that this appeal Endeavour as prayed on the sentence (a) Reduction and if need be a re-trial. 8. During trial, PW1 testified that she was in the kitchen cooking with the door open. She later on went to sleep and while in bed she heard a commotion and suddenly the appellant fell on her and grabbed her throat and asked her not to scream and if she did she would kill her. The appellant asked for Kshs 10,000 but PW1 told him she had no money and instead she only had Kshs 1,175 that was church contribution. This is the point where she recognized his voice and the appellant went ahead and raped her and kept threatening her that he would kill her. The appellant then left with Kshs 1,175 and the phone that wason the table. 9. During cross-examination PW1 testified that indeed the appellant is a relative and that is how she was able to recognize his voice. 10. PW2 the Clinical Officer on observing PW1 said that the hymen was badly broken, whitish discharge on genitalia and that the Epithelia cell show that there was inflammation of the urinary tract and vagina. 11. PW3, PW4 and PW5 all police officers of Kamagambo Police Station who were on duty testified during trial to the effect that the phone was traced back to the 2nd accused ((Stephen Onkuto) who was not aware that it was a stolen phone ecause he was given the phone by the 3rd accused (Evans Ochieng alias aisha). The 3rd accused then directed the officers to two people one being the 4th accused (Edwin Otieno) and Fred both from Rongo who had a motorbike. 12. On 21st August 2019 the 1st accused was traced where he was hiding and arrested and he made confessionary statement to the OCS Kamagambo (PW6) police station that indeed he had committed rape and went into hiding in Kisumu and when he heard he was being looked for, he then sold the phone to the 2nd accused. 13. PW6 the Investigating Officer testified that she issued the complainant (PW1) with a P3 Form and the same was filled with a PRC form. PW1 brought the receipt of the phone and the IMEI Number was sent to Safaricom and that how the phone was traced and 4th accused confirmed that he had been given the phone by someone in Rongo and PW1 was able to identify the accused through his voice. 14. When placed on defence, the Appellant gave sworn evidence that indeed he raped the complainant (PW1) and that the complainant had been seducing him and that they had a love affair and on crossexamination he confirmed that he sold the phone to 2nd accused in Kisumu. 15. This appeal was heard by way of written submissions. The Appellant’s submissions are dated 22nd April 2024 and are already recorded in the proceeding above as part of his amended grounds of appeal. 16. The Respondent’s submissions are dated 30th November 2023 and are to the effect that the Appellant admitted having raped the Complainant on the allegations she was seducing him. That there was evidence adduced that the Complainant’s phone was traced back to the Appellant after he sold it in Kisumu to A2 and therefore the offence of robbery with violence and rape were proved beyond all reasonable doubt. 17. On the issue of propriety of the sentence it was submitted that sentencing is at the discretion of the trial court and that the holding in Muruatetu Petition does not apply to other cases except murder. 18. The Respondents urged the court to dismiss the appeal as it lacks merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8332/eng@2026-03-19 3

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Analysis and Determination 19. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.” Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that: “ … the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.” 20. The appeal herein is confined to sentence. Conviction is not in issue, and in any event, the Appellant made clear judicial admissions both at trial and during cross-examination, corroborated by medical and circumstantial evidence. 21. Section 3(3) of the Sexual Offences Act prescribes a minimum sentence of ten (10) years imprisonment, which may be enhanced to life imprisonment. 22. Section 296(2) of the Penal Code provides that a person convicted with the offence of robbery with violence shall be liable to death penalty. However, following jurisprudential developments post-Francis Karioko Muruatetu & Another v Republic, the mandatory nature of the death sentence has been declared unconstitutional only in respect of murder under Section 204 of the Penal Code. 23. Subsequently, in Muruatetu Directions (2021), the Supreme Court clarified that the decision does not automatically apply to other capital offences, including robbery with violence. 24. An appellate court will only interfere with sentence where the trial court acted on wrong principles, the sentence is illegal, the sentence is manifestly excessive; or the relevant factors were ignored or irrelevant ones considered. This was the holding in Wanjema v Republic. 25. Being that the sentence for robbery with violence is death penalty, the 30 years imprisonment imposed by the trial court was more lenient than the statutory maximum. There was therefore no illegality. 26. The sentence of 30 years imprisonment for rape is lawful, being that the Trial court had the discretion to enhance the same above the statutory minimum of 10 years. 27. On whether the sentence was excessive, the offence involved both sexual violence and robbery in the same transaction. The complainant was attacked at night in her home, a place of safety. There were threats to kill, involving use of a weapon – a knife. The Appellant abused familiarity/relationship with the complainant and he admitted the acts, including disposal of stolen property. 28. The Appellant in mitigation pleaded that he was a first offender and he expressed remorse and asked the court to consider his 2 months period in remand custody. The mitigating factors weighed against the admission under overwhelming evidence are grave. 29. The trial court considered these mitigating factors in arriving at a concurrent sentence in the two counts and that was favourable to the Appellant given the distinct and serious nature of the offences. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8332/eng@2026-03-19 4

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30. Most grounds of appeal advanced by the Appellant are general mitigation pleas namely: youthfulness, remorse, first offender status, rehabilitation prospects. These were either already within the trial court’s discretion, or are insufficient to displace the seriousness of the offences. 31. The reliance on “recent judicial developments” is misplaced in light of the Supreme Court clarification in the Muruatetu directions (2021). 32. In conclusion the sentence imposed was lawful, within statutory limits, and appropriately exercised. The trial court did not misdirect itself on principle. However, in consideration of the value of the subject matter stolen and in consideration that the minimum sentence for the offence of rape is 10 years this court finds it expedient to interfere with the sentence by setting it aside and substituting it thereof with 10years imprisonment for both counts to run concurrently from the date of sentence in the trial court. Upon completion of the sentence the Appellant will serve a further 3 years under probation supervision. 33. The appeal on sentence therefore succeeds partially. The conviction and sentence are hereby upheld. DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF MARCH, 2026. HON. ANNE ADWERA- ONG’INJO JUDGE In the Presence of: Victor – Court Assistant Mr. Oimbo – Counsel for the Respondent/ State Appellant - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8332/eng@2026-03-19 5

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