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Court of AppealDismissedCriminal Appeal 71 of 2020

Arogo v Republic

Court of Appeal
19 December 2025
ASAsike-MakhandiaHOHA OmondiLKLK Kimaru
1,258 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that mandatory minimum sentences for defilement remain valid, and a 20-year sentence stands.

What this practically means

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Executive summary

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The appellant, Abel Nyansera Arogo, was convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to twenty years imprisonment. His first appeal to the High Court at Kisii against both conviction and sentence was dismissed. In this second appeal he abandoned the conviction challenge and attacked only the sentence, arguing that the mandatory minimum sentence under the SOA was unconstitutional, violated Article 29(d) and (f) of the Constitution, and that the period he spent in remand custody was not credited under section 333(2) of the Criminal Procedure Code. He relied on GK v Republic and Maingi, which had questioned mandatory minimum sentences. The respondent relied on the Supreme Court's decision in Republic v. Gichuki Mwangi & others, which upheld the legality of such sentences. The Court of Appeal, sitting at Kisumu (Asike-Makhandia, HA Omondi and LK Kimaru, JJA), agreed with the respondent, holding that under the stare decisis principle the Supreme Court's decision controlled and the appellant's cited authorities were no longer good law. On the section 333(2) ground, the Court perused the trial record and found the appellant had been released on bond on 23rd April 2013 and was out on bond throughout the trial, so his assertion that remand custody was not considered was inaccurate. The appeal was dismissed in its entirety. The judgment binds subordinate courts on the legality of SOA mandatory minimum sentences and the application of stare decisis to contrary High Court and Court of Appeal pronouncements.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the mandatory minimum custodial sentence under the Sexual Offences Act is unconstitutional
  2. 2.Whether the courts below should have taken into account the period the appellant spent in remand custody under section 333(2) of the Criminal Procedure Code

Key legal issues

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01

Constitutionality of mandatory minimum sentences under the Sexual Offences Act

Holding

The mandatory minimum custodial sentences under the SOA are legal; the appellant's ground fails

Reasoning

The appellant relied on GK v Republic and Maingi, which had declared mandatory minimum sentences under the SOA unconstitutional. The respondent countered that the Supreme Court in Republic v. Gichuki Mwangi & others had since held such sentences legal. The Court agreed with the respondent and, applying the stare decisis principle, held the appellant's cited decisions no longer good law.

p. 2
02

Section 333(2) Criminal Procedure Code - credit for remand custody

Holding

The ground fails because the appellant was on bond during the trial and thus cannot benefit from section 333(2)

Reasoning

The Court perused the trial proceedings and found the appellant was arraigned on 14th April 2013, initially pleaded guilty, changed his plea on 15th April 2013, and was released on bond on 23rd April 2013 after securing a surety. He was therefore out on bond during the entire trial, making his assertion that remand custody was not considered inaccurate.

p. 3

Legal principles established

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  • Mandatory minimum custodial sentences prescribed under the Sexual Offences Act are legal, as declared by the Supreme Court, and bind the Court of Appeal under the stare decisis principle
  • On a second appeal under section 361 of the Criminal Procedure Code, the Court considers only matters of law and will not disturb concurrent findings of fact of the two courts below

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority
HO
majority
LK
majority
On appeal from
High Court of Kenya at Kisii
HCCRA No. 28 of 2018
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal, matters of law only)

Relief refused

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Reduction of the 20-year custodial sentence on the ground that the mandatory minimum sentence is unconstitutional

The Supreme Court in Republic v. Gichuki Mwangi & others upheld the legality of mandatory minimum sentences under the SOA; the decisions relied on by the appellant are no longer good law

p. 2

Credit for time spent in remand custody under section 333(2) of the Criminal Procedure Code

The appellant was released on bond and was out on bond during the entire period of trial, so the assertion that remand custody was not considered is inaccurate

p. 3

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have considered the said submission and agree with the respondent that mandatory minimum custodial sentences prescribed under the SOA are legal as held by the Supreme Court in the above case.
p. 2Legality of mandatory minimum sentences under the SOA
The decisions relied on by the appellant are no longer good law in light of the decision rendered by the Supreme Court under the stare decisis principle.
p. 2Stare decisis and Supreme Court precedent
The appellant was out on bond during the entire period of trial. He cannot therefore benefit from section 333(2) of the Criminal Procedure Code.
p. 3Section 333(2) CPC - remand custody credit
The upshot of the above reasons is that the appeal lacks merit. It is hereby dismissed.
p. 3Final orders - dismissal of the appeal

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, "Arogo v Republic", Case Analysis (2025). Criminal Appeal 71 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2268/eng@2025-12-19

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