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Court of AppealDismissedCriminal Appeal (unnumbered in judgment; appeal from Siaya High Court Criminal Appeal No. 10 of 2017)· [2025] KECA 336 (KLR)

Benad Odongo Ogutu v Republic

Court of Appeal of Kenya
21 February 2025
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that 20-year minimum sentences for defilement are constitutional, and that time spent on bail does not reduce a prison sentence.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu by Benad Odongo Ogutu, who had been convicted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to the statutory minimum of twenty years' imprisonment. The High Court at Siaya (Aburili, J.) had dismissed his first appeal on 19th December 2018, and his appeal against conviction was withdrawn, leaving only the sentence in issue. The appellant, acting in person, argued that the mandatory minimum sentence under section 8(3) was unconstitutional for curtailing judicial discretion and offending the rehabilitation objective of sentencing, and sought that his sentence run from the date of arrest. The respondent opposed, while conceding that the trial magistrate had been constrained by the law but urging a severe sentence given the appellant's abuse of a position of trust as a teacher. The Court held that it was bound by the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, which upheld the constitutionality of the minimum sentences in the Sexual Offences Act and distinguished mandatory from minimum sentences; under Article 163(7) that decision overruled earlier contrary Court of Appeal authority. Independently, the constitutional argument failed because it was raised for the first time on second appeal without having been preserved before the High Court. The Court also rejected the section 333(2) claim, finding the appellant had been on bond throughout the trial, and that the sentence therefore runs from the date of sentencing, 26th January 2017. The appeal was dismissed in its entirety and the twenty-year sentence was upheld.

Key legal issues

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01

Constitutionality of mandatory minimum sentences under the Sexual Offences Act

Holding

Rejected; the Court is bound by the Supreme Court's holding that minimum sentences are constitutional.

Reasoning

The Court followed Republic v Joshua Gichuki Mwangi, in which the Supreme Court distinguished mandatory from minimum sentences, holding that minimum sentences set the floor and do not oust judicial discretion to impose harsher sentences. Under Article 163(7) the Supreme Court decision binds the Court of Appeal and overrules earlier contrary Court of Appeal decisions.

02

Raising unconstitutionality for the first time on second appeal

Holding

The Court lacks jurisdiction; the issue was not preserved before the High Court.

Reasoning

As re-affirmed by the Supreme Court in the Mwangi case, a second appellate court cannot entertain issues not raised in the first appeal. The appellant did not challenge the constitutionality of his sentence before the High Court, so the argument is precluded on second appeal.

p. 4
03

Commencement of sentence under section 333(2) CPC

Holding

Inapplicable; appellant was on bond during trial, and sentence runs from date of sentencing.

Reasoning

The record showed the appellant was arrested on 25th October 2016, arraigned on 26th October 2016, and granted bond on 28th October 2016, thereafter standing trial while on bond. Section 333(2), which credits time spent in custody, therefore does not apply; the sentence runs from the date of sentencing, 26th January 2017.

p. 4

Legal principles established

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  • Mandatory minimum sentences in the Sexual Offences Act are constitutional and trial courts have no discretion to go below the statutory minimum in sexual offences (per Supreme Court in Republic v Joshua Gichuki Mwangi, binding under Article 163(7))
  • An issue of unconstitutionality not raised and preserved in the first appeal before the High Court cannot be entertained on second appeal
  • Section 333(2) CPC does not apply where the accused was out on bond during the trial

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Sentence of twenty (20) years imprisonment upheld, running from 26th January 2017, the date of sentencing
On appeal from
High Court of Kenya at Siaya
Criminal Appeal No. 10 of 2017
Jurisdiction invoked
Section 361(a) of the Criminal Procedure Code (second appeal, matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benad Odongo Ogutu v Republic", Case Analysis (2025). Criminal Appeal (unnumbered in judgment; appeal from Siaya High Court Criminal Appeal No. 10 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/336/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.