Odungi v Republic (Criminal Appeal 320 of 2019) [2025] KECA 717 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a life sentence for defilement, confirming mandatory sentences under the Sexual Offences Act remain lawful after the Supreme Court's Mwangi decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution established the elements of the offence of defilement beyond any reasonable doubt
- 2.Whether the DNA evidence was obtained illegally
- 3.Whether the appellant's alibi defence was properly considered
- 4.Whether the appellant's right under Article 49(1)(f) of the Constitution was breached
- 5.Whether the appellant's sentence was unconstitutional
Key legal issues
#Sufficiency of proof of defilement
The prosecution proved the three elements of defilement - age, penetration and identification - beyond reasonable doubt.
The complainant's age was not contested; penetration could be proved by the victim's oral evidence or circumstantial evidence, and here the complainant's unsworn evidence was corroborated by medical evidence showing a perineal tear and lacerations, and by PW2's evidence of blood. Identification was by recognition, with the appellant admitting the family were his neighbours, and DNA on the clothes placing him at the scene.
Admissibility of DNA evidence allegedly obtained without a court order
The Court declined to determine the legality of the DNA sampling, the issue having been raised for the first time on second appeal; in any event the conviction rested on recognition identification.
Because the two courts below never addressed the legality of the DNA sampling, it would be improper for the second appellate court to interfere. Independently of the DNA, the complainant identified the appellant by name and by recognition in her first report, so the DNA merely corroborated cogent direct evidence.
Alibi defence
The alibi was displaced by the prosecution evidence and was raised as an afterthought; DW2 could not speak to the appellant's whereabouts after 6.00 p.m.
The complainant disappeared around 6.30/7.00 p.m. DW2 was not in Ahero on 8th July and could not confirm the appellant's whereabouts after 6.00 p.m.; Ahero is a thirty-minute drive from Kisumu, so the appellant had the opportunity to commit the offence. The alibi was also raised only at the defence stage, too late for investigation.
Breach of Article 49(1)(f) - 24-hour production before court
There was no proof on record that the court granted the investigating officer's application for pre-charge detention, but the violation, if any, does not vitiate the conviction.
The appellant was arrested on 9th July 2015 and arraigned on 17th July 2015, and there was no evidence the court allowed continued detention. However, the remedy for such a violation is a separate constitutional petition against the State under Article 22, not an acquittal on the criminal charge.
Constitutionality of the mandatory life sentence under Section 8(2) of the Sexual Offences Act
The life sentence is lawful; the Supreme Court in R vs. Mwangi (ISLA) reaffirmed the legality of the mandatory sentences and overturned Manyeso.
The Court of Appeal is bound by the Supreme Court's holding that the minimum sentences under the Sexual Offences Act are lawful while the penalty sections remain valid, and that their constitutionality must be tested through the hierarchy of courts. Manyeso, relied on by the appellant, no longer stands.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact unless the two courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong on the evidence as a whole.
- A party may not raise an issue (such as alleged illegality of DNA sampling) for the first time on second appeal where the two courts below were not given the opportunity to make a finding on it.
- A violation of Article 49 (production before court within 24 hours) does not vitiate a criminal conviction; the remedy lies in a separate constitutional claim against the State.
- Following the Supreme Court's decision in R vs. Mwangi; ISLA (Amicus Curiae), the mandatory sentences under the Sexual Offences Act remain lawful, and this Court's earlier decision in Manyeso v Republic on indeterminate life sentences has been overturned.
- An accused who wishes to rely on an alibi must raise it at the earliest possible opportunity; the burden of disproving an alibi remains with the prosecution throughout.
Court orders
#- 1.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (sitting as first appellate court)
- not stated in the judgment
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) of the Criminal Procedure Code - issues of law only
Relief refused
#Quashing of conviction for defilement
Elements of defilement (age, penetration, identification) were proved beyond reasonable doubt; complainant's evidence was corroborated
Exclusion of DNA evidence as illegally obtained
Issue raised for the first time on second appeal and the courts below had no chance to make a finding on it
Relief for the alleged breach of Article 49(1)(f) (24-hour production before court)
Violation, if any, does not vitiate the conviction; appellant left to pursue a separate constitutional claim
Reduction of the life sentence
The Supreme Court in R vs. Mwangi (ISLA) reaffirmed the legality of the mandatory sentences under the Sexual Offences Act and overturned Manyeso
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
our mandate is limited by Section 361(1) (a) of the Criminal Procedure Code to consider issues of law only, but not matters of fact that have been tried by the trial Court and re-evaluated on first appeal by the High Court and concurrent findings arrived at, unless it is demonstrated that the two courts below 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
Since the two courts below were not given the opportunity to address their minds on the issue, it would be improper for this Court to interfere with their decisions when they did not have a chance to make a finding on the same
The appellant is at liberty to institute a civil suit before a constitutional court for legal remedies against the State for the alleged violation of his rights as provided by Article 22 of the Constitution
In that regard, the Supreme Court overturned this Court’s decision in Manyeso (supra)
In the end, we find that the appeal lacks merit and is hereby dismissed in its entirety. Orders accordingly.
Issues in the judgment
#The complainant's first report names 'Brighton Omondi' as her assailant, while the appellant is charged as Brian Ochieng Odungi and the Chief is recorded as referring to 'Brian Otieno Odunge'; the judgment does not expressly reconcile the differing names/surnames.
The judgment does not state the case number of the appeal before the Court of Appeal or the High Court appeal number, and no costs order is made.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odungi v Republic (Criminal Appeal 320 of 2019) [2025] KECA 717 (KLR)", Case Analysis (2025). Criminal Appeal (not expressly numbered in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/717/eng@2025-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.