Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal E038 of 2024

Franklin Odoyo Shako v Republic

Court of Appeal of Kenya
25 September 2026
3,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

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

#
This was a second appeal against the appellant's conviction and 20-year sentence for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, arising from events of 24th-25th November 2020 in Hola. The High Court at Garsen (Githinji, J.) had dismissed the first appeal and upheld both conviction and sentence. Before the Court of Appeal (Murgor, Laibuta and Okong'o, JJA), the appellant raised four grounds. The Court held that its mandate was circumscribed by section 361 of the Criminal Procedure Code, confining it to questions of law, and declined to entertain the first three grounds, which were raised for the first time on second appeal, applying a consistent line of authority including Karingo v Republic, Saggaf v Algeredi and Wachira v Ndanjeru on the bar against taking new points on appeal. On the fourth ground - failure to give reasons for dismissing the defence - the Court found the impugned judgment contained elaborate analysis rejecting the alleged grudge defence as an afterthought. The Court also considered, of its own initiative, the appellant's belated plea of autrefois acquit based on his acquittal in a separate Malindi defilement case. Although the plea engaged Article 50(2)(o) and merited consideration, it failed because the two charges concerned distinct acts at different times and places, with no nexus between the facts. The appeal was dismissed in its entirety and the High Court judgment upheld. No order as to costs was made.

Questions the Court framed

#

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

  1. 1.Whether the learned Judge erred in failing to give reasons for dismissing the appellant's defence
  2. 2.Whether new issues raised for the first time on second appeal (grounds 1-3) should be entertained
  3. 3.Whether the plea of autrefois acquit, raised belatedly in the first appeal, barred the appellant's trial

Key legal issues

#
01

Scope of second appeal under section 361 Criminal Procedure Code

Holding

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.

Reasoning

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.

02

Raising new issues for the first time on second appeal

Holding

Grounds 1-3, raised for the first time on second appeal, were properly declined; trial by instalments militates against the Court's discretionary powers.

Reasoning

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.

p. 6
03

Failure to give reasons for dismissing the defence

Holding

The High Court judgment contained elaborate analysis of the defence and reasons for its rejection; the Judge could not be faulted.

Reasoning

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.

p. 6
04

Plea of autrefois acquit under section 138 of the Criminal Procedure Code

Holding

The plea fails: the Hola charge (November 2020) and the Malindi acquittal (January-March 2021) concerned different acts, so the trial was not barred.

Reasoning

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.

p. 6

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. 1.The appeal is dismissed in its entirety
  2. 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.

majority
majority
majority
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

p. 6

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

p. 6

Plea of autrefois acquit

The two defilement charges concerned different acts at different times and places; no nexus between the facts

p. 6

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.
Evaluation of evidence on second appeal
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.
p. 7Final orders - dismissal and upholding of High Court judgment
Orders accordingly.
p. 7Disposition
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.
p. 6Statutory bar - autrefois acquit, section 138 Criminal Procedure Code

Issues in the judgment

#
minor

Conflicting dates for the High Court judgment

material

Conflicting findings on the complainant's date of birth between the trial court and the High Court

minor

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.