Franklin Odoyo Shako v Republic
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming that second appeals only address legal errors and double jeopardy fails where charges involve different acts.
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 learned Judge erred in failing to give reasons for dismissing the appellant's defence
- 2.Whether new issues raised for the first time on second appeal (grounds 1-3) should be entertained
- 3.Whether the plea of autrefois acquit, raised belatedly in the first appeal, barred the appellant's trial
Key legal issues
#Scope of second appeal under section 361 Criminal Procedure Code
The Court's jurisdiction is strictly confined to questions of law; concurrent findings of fact by the two courts below are not disturbed unless founded on no evidence.
Relying on Karingo v Republic, the Court held its mandate on second appeal is circumscribed by section 361 of the Criminal Procedure Code, confining it strictly to questions of law. Concurrent factual findings on identification, penetration and age of the complainant therefore fell outside its remit and were not disturbed.
Raising new issues for the first time on second appeal
Grounds 1-3, raised for the first time on second appeal, were properly declined; trial by instalments militates against the Court's discretionary powers.
Following KCB v James Osede, Alwi A Saggaf v Abed A Algeredi, Alfayo Gombe Okello, Sudi Mnalo Mweke and Wachira v Ndanjeru, the Court held that a new point of law not argued below will not be entertained unless the evidence, if fully investigated, would clearly support the new plea. No such demonstration was made here.
Failure to give reasons for dismissing the defence
The High Court judgment contained elaborate analysis of the defence and reasons for its rejection; the Judge could not be faulted.
The Court found the impugned judgment replete with analysis of the alleged grudge defence, which the High Court described as unsubstantiated, a flimsy made up story, and an afterthought since the prosecution witnesses had not been cross-examined on it. There was thus no failure to give reasons.
Plea of autrefois acquit under section 138 of the Criminal Procedure Code
The plea fails: the Hola charge (November 2020) and the Malindi acquittal (January-March 2021) concerned different acts, so the trial was not barred.
Although the plea engaged the constitutional right under Article 50(2)(o) and merited consideration despite being raised belatedly, the two charges concerned separate and distinct acts at different times and places. Even identity of complainant and witnesses would be immaterial; no nexus existed between the facts, so the trial was proper.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions of law and will not disturb concurrent findings of fact unless shown to be founded on no evidence.
- A point of law raised for the first time on appeal will not be entertained unless the court is satisfied that the facts, if fully investigated, would have supported the new plea.
- A plea of autrefois acquit fails where the two charges concern different and distinct acts; similarity of complainant or witnesses is immaterial.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 6th May 2024 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- HCCRA No. E001 of 2023
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to questions of law)
Relief refused
#Acquittal on the ground that the High Court failed to give reasons for dismissing the defence
The impugned judgment contained elaborate analysis of the defence and reasons for its rejection
Consideration of grounds 1-3 raised for the first time on second appeal
Second appeals are confined to questions of law; new points not argued below should not be entertained absent demonstration that full investigation would support the new plea
Plea of autrefois acquit
The two defilement charges concerned different acts at different times and places; no nexus between the facts
Costs
The judgment makes no order as to costs.
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.
In the result, the Court finds no basis upon which to fault the learned Judge's evaluation and consideration of the evidence on record, including the appellant’s defence.
we can only conclude that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 6th May 2024 is hereby upheld.
Orders accordingly.
A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.
Issues in the judgment
#Conflicting dates for the High Court judgment
Conflicting findings on the complainant's date of birth between the trial court and the High Court
Irregular paragraph numbering - paragraph 19 repeated multiple times
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Franklin Odoyo Shako v Republic", Case Analysis (2026). Criminal Appeal E038 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.