Franklin Odoyo Shako v Republic

construction site where her mother cooked for workers, and at which she helped fetch water; and that the appellant had called her and promised that he would marry her and build her a house. 4. PW1 further testied that, one day, the appellant called her using her mother’s phone number and arranged to meet her at [Particulars Withheld] in Hola Town; that they met in a room in the guesthouse in the evening of 24th November 2020; that the appellant urged her to undress and, when she hesitated, he undressed her; that he kissed her, told her to lie on the bed, removed his own clothes, and got on top of her; that he rst inserted a nger into her vagina, thereby causing her pain because she was a virgin, and then inserted his penis into her vagina; that he covered her mouth to prevent her from screaming; that she spent the night in the room; and that, the following night, she used the appellant’s phone to call her mother, but that the line went silent after her mother responded. 5. The complainant’s mother (PW2) testied that, on the night of 24th November 2020, she noticed that her daughter was missing from the house and searched for her the entire night without success; that, the next morning, she reported her disappearance at Hola Police Station; that, later, her son, a boda boda operator, recognised the phone number used to call PW2 as belonging to the appellant, who he used to ferry on his motorcycle; and that she called the appellant, who admitted that he was with PW1. 6. PW3, a cousin to the complainant, testied that, on 25th November 2020, he heard that PW1 had gone missing; and that, the next morning, he met the appellant at a round-about near the County Commissioner’s Oce; that the appellant appeared afraid of going into the village, and told PW3 that PW1 was at[Particulars Withheld], and that he (the appellant) wished to settle the matter out-of- court; that PW3 informed PW2 what had transpired; and that the appellant led both PW3 and PW2 to the room in the guest-house where they found PW1. PW3 further testied that, as they were leaving with PW1, they were stopped by police ocers, who arrested the appellant. 7. PW4, a clinical ocer at Hola County Hospital who had examined PW1, testied that, upon examination, the victim’s (PW1’s) hymen was freshly broken. She also noted the presence of vaginal candidiasis, but a high vaginal swab revealed no spermatozoa. Despite the absence of spermatozoa, PW4 formed the opinion that the victim had been deled based on the freshly broken hymen and the history as given. PW4 produced the treatment notes and P3 form, which she completed after the examination. 8. PW5, the investigating ocer who took over the case from the rst investigator, who was found to be partisan, completed the investigations and had the appellant charged. 9. In his defence, the appellant gave an unsworn statement. His defence was that, on 26th November 2020, he was working at the speaker’s residence in Bula Salama and was preparing to take samples for analysis in Mombasa when he was arrested; that, when taken to the police station, PW1 was asked whether she knew him, and she said that she did not; and that, when Corporal Zainabu asked PW1 her age, she said that she was 19. 10. The appellant contended that the complainant’s family had a grudge against him because he had reported at Hola Police Station a shortage of 150 bags of cement at the construction site where the complainant’s uncle was the storekeeper. He further stated that, on 24th November 2020, he saw PW1 working at the site and heard her ghting with her brother, who called her a prostitute. The appellant contested the victim’s age, her status as a student, and denied that he was ever at the guest house with her. He asserted that the prosecution’s evidence was riddled with contradictions, and that he had been wrongly identied and convicted. 11. In its judgment dated 2nd August 2022, the trial court (B. Kabanga, SRM) found that the prosecution had proved the three ingredients of delement beyond reasonable doubt. On identication, the court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 2

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found that the complainant (PW1) knew the appellant well from the construction site where her mother worked, and had even promised to marry her. On penetration, the court found that the complainant’s testimony was corroborated by the clinical ocer (PW4), who found her hymen freshly broken. On the complainant’s age, the court found that the birth certicate produced showed that the complainant was born on 12th August 2008, making her 12 years and 4 months old at the time of the oence, which fell within the relevant age bracket under section 8(3) of the Sexual Offences Act. 12. Accordingly, the trial court rejected the appellant’s defence that the case against him was fabricated due to a prior dispute over missing construction materials, noting that his defence was inconsistent in that he rst denied knowing the victim but later admitted he had seen her at the site. The court concluded that the defence was an afterthought and too weak to dislodge the prosecution’s solid and consistent case. Consequently, the court convicted the appellant of the oence as charged and sentenced him to 20 years’ imprisonment. 13. Aggrieved by the conviction and sentence, the appellant led an appeal in the High Court at Garsen in HCCRA No. E001 of 2023 on the grounds that the trial Magistrate erred in law and fact by failing to consider that the prosecution did not prove their case beyond reasonable doubt; by failing to consider sharp contradictions in the prosecution’s entire case; by failing to consider that there was no cogent evidence to connect the appellant to the commission of the alleged oence; and by failing to consider the appellant’s defence which was unrebutted, thereby creating doubt in the prosecution case. 14. In its judgment dated 6th May 2024, the High Court (S. M. Githinji, J.) revaluated the evidence and considered whether the three essential ingredients for delement – the age of the victim, penetration, and identication of the perpetrator – had been suciently proved. The court found that the complainant’s birth certicate showed that she was born on 12th August 2006, making her 14 years at the time the oence occurred between 24th and 25th November 2020. The court rejected the appellant’s suggestion that the birth certicate was obtained specically for this case, noting that it had been issued long before the alleged oence. 15. On penetration, the court relied on the complainant’s evidence describing sexual intercourse involving penetration of her vagina by the appellant’s penis. The court found that this evidence was well corroborated by the clinical ocer (PW4), who noted that the victim’s hymen had been freshly broken. The court further claried that the absence of spermatozoa did not of itself negate penetration since ejaculation is not an ingredient of delement. 16. On the question of positive identication of the perpetrator, the court found the appellant’s defence to be internally contradictory, noting that, although he initially claimed that the complainant was a stranger to him and that, at the police station, she stated that she did not know him, he later admitted that he had seen her working at the construction site and heard her quarrelling with her brother. The court noted that the complainant and her mother were common at the building site where the appellant worked, making him well known to both; that the appellant had called the complainant using her mother’s phone, approached a witness (PW3) about the matter, and personally led PW3 and the complainant’s mother to the room in the guest-house where PW1 was found; and that the guesthouse records showed that the appellant had booked room number 5 on 24th November 2020 using his identication card number and phone number, which were not disputed. The High Court described the appellant’s defence of a grudge over missing cement bags as unsubstantiated, a imsy made up story that did not add up, and an afterthought since he had not cross‑examined the prosecution witnesses on the alleged grudge. 17. Regarding the sentence, the court found that the sentence of 20 years’ imprisonment which was within the law, matched the gravity of the oence, and was deserved by the appellant. The court therefore https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 3

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concluded that the appeal lacked merit, dismissed it in its entirety, and upheld both the conviction and sentence. 18. Still aggrieved, the appellant moved to this Court on 2nd appeal on four grounds set out in his undated Memorandum of Appeal and a subsequent undated Amended Grounds of Appeal, namely: “ 1. That the superior court Judge erred in law in failing to notice that the medical documents that were produced in support of this charge were unsubstantiated to withstand this conviction. 2. That the superior court Judge erred in law in not considering that the prosecution’s failure to take the appellant to the hospital was fatal on their side since it was essential for the same to be done, as the purported evidence says that him and the victim were arrested at one place. 3. That the superior court Judge erred in law in not considering that the evidence tendered in support of this matter were adduced by unreliable witnesses whose evidence [was] unreliable to withstand the truth. 4. That the superior court Judge erred in law in not stating the reason [for] my defence’s dismissal which was meritorious to warrant for my acquittal.” 19. Along with his undated Amended Grounds of Appeal, the appellant led undated written submissions in support of the appeal. On his part in rebuttal, counsel for the respondent, Steve Waweru (Prosecution Counsel), led written submissions dated 20th February 2026. 19. We hasten to observe that our mandate on a second appeal, such as the one presently before us, is circumscribed by the provisions of section 361 of the Criminal Procedure Code, which connes our jurisdiction strictly to the consideration of questions of law. The principle is not novel. In Karingo v Republic [1982] KLR 213, this Court authoritatively pronounced that a second appeal must be conned to points of law, and that concurrent ndings of fact made by the two courts below would not be disturbed unless it was demonstrated that they were founded on no evidence. 19. Having carefully considered the record of appeal, the grounds on which it is anchored, the impugned judgment, the respective submissions and the law, we nd that this appeal stands or falls on our holding on a single issue arising from the 4th ground of appeal, namely whether the learned Judge erred in failing to give reasons for dismissing the appellant’s defence. 19. We also take cognisance that the rst three grounds of appeal were raised for the rst time on 2nd appeal. This Court has had occasion to consider the eect of raising an issue on appeal for the rst time in, among other cases, Kenya Commercial Bank Ltd v James Osede [1982] eKLR where Hancox, JA. had this to say: “ … that where the right of appeal is statutory, it is to be conned to points of law raised before and decided by the trial judge.” 19. Addressing himself to the prejudicial eect of new points of law or issues raised for the rst time on appeal, Forbes VP had this to say in Alwi A Saggaf v Abed A Algeredi 1961 EA 767 CA 610: “ But these are assumptions which were never tested at the trial. The minds of the parties simply were not directed to this issue, which apparently, was raised by counsel for the respondent for the rst time in his reply at the end of the hearing of the rst appeal. In the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 4

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circumstances, it appears to me that the appellant had no fair notice of this issue, and that the court cannot be satised that the facts, if fully investigated, would have supported the new plea. In my view, accordingly, the learned judge ought not to have allowed this issue to be raised, or to have decided the appeal on it.” 19. In the same vein, this Court in Alfayo Gombe Okello v Republic [2010] eKLR underscored the importance of raising all issues in contention at the earliest opportunity at the trial and had this to say on the issue: “ … the issue was not raised since the trial began and was only raised for the rst time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore nd, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 19. Likewise, this Court in Sudi Mnalo Mweke v Republic [2023] KECA 1527 (KLR) identied itself with the holding by the predecessor to this Court in Alwi Abdulrehman Saggaf v Abed Ali Algeredi [1961] EA 767 where, in its holding, the Court laid down the guiding principle that the course of taking on appeal a point of law which has not been argued in the court below ought not to be followed unless the court is satised that the evidence upon which they are asked to decide established beyond doubt that the facts, if fully investigated, would have supported the new plea. The justication for that holding was that: “ The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The eciency and authority of a Court of Appeal, and especially a nal Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in eect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below. It (has) been clear for nearly a century and perhaps more, that the litigant could not take a completely new point of law for the rst time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.” 19. We need not overemphasise the general principle that trial by instalments militate against the discretionary powers of this Court in the administration of justice. That this principle continues to hold sway was aptly demonstrated in Wachira v Ndanjeru (1987) KLR 252 where this Court spoke to the bar with Platt, JA. observing that: “ …the discretion to allow a point of law to be taken for the rst time on appeal will not be exercised unless full justice can be done between the parties. It will not usually be allowed when to do so would involve disputed facts which were not investigated or tested at the trial. Nor will a party be allowed to raise on appeal, a case totally inconsistent with that which he raised in the trial court, even though evidence taken in that court supports the new case.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 5

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19. For the foregoing reasons, and on the authority of the afore- cited judicial decisions, we respectfully decline to consider or pronounce ourselves on the new issues raised for the rst time on second appeal to this Court. 19. Turning to the issue as to whether the learned Judge failed to give reasons for dismissing the appellant’s defence, we hasten to observe that the impugned judgment is not short of elaborate analysis of the defence raised, and the reasons given by the learned Judge in conclusion that it did not carry the day. We need not rehash the foregoing reasons on the basis of which the learned Judge dismissed the appellant’s defence of the alleged grudge. Accordingly, the learned Judge cannot be faulted for dismissing this defence as an afterthought. 19. Even though the appellant belatedly raised the plea of autrefois acquit for the rst time in his written submissions to the High Court in the rst appeal, and which is closely related to his defence, it was a matter of law meriting consideration (see NKW v Republic [2003] KECA 177 (KLR)); and furthermore concerned the appellant’s fundamental constitutional right under Article 50 (2) (o) not to be tried for an oence in respect of an act or omission for which he had been previously acquitted. Notably, the learned Judge did not make a determination on this plea. 19. In support of the plea, the appellant attached to his submissions a ruling of the Principal Magistrate’s Court at Hola dated 7th July 2022 in MCSO Case No. E024 of 2021 in which the court acquitted the appellant of a charge of delement, whose particulars were that, on diverse dates between 23rd January 2021 and 23rd March 2021 at Malindi town in Malindi Sub-County within Kili County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of MM, a child aged 15 years. In that case, the court found several gaps and inconsistencies in the prosecution’s evidence, as well as contradictions in the complainant’s testimony, that vitiated a conviction and made it unnecessary for the appellant to be put on his defence. 19. Section 138 of the Criminal Procedure Code sets out a statutory bar against trying an accused person for the same oence. This is the basis of a plea of autrefois acquit. The said section provides that: 138. Persons convicted or acquitted not to be tried again for same oence A person who has been once tried by a court of competent jurisdiction for an oence and convicted or acquitted of that oence 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 oence. 32. In Criminal Case No. 27 of 2020, the appellant was charged with the oence of delement in respect of acts alleged to have been committed by the appellant between 24th and 25th November 2020 at Hola town. On the other hand, in MCSO Case No. E024 of 2021, the appellant was charged with the oence of delement in respect of separate and distinct acts alleged to have been committed by the appellant much later between 23rd January 2021 and 23rd March 2021 at Malindi town. 32. Even if the complainant and witnesses were the same in the two cases, which fact was not demonstrated by the appellant, any such similarity is immaterial in proving the defence of autrefois acquit (a legal plea asserting that a defendant has already been tried and acquitted for the same oense, preventing a second trial in violation of the principle of double jeopardy). More importantly, no nexus can be drawn between the facts set out in the two cases, which reveal that the two cases concerned dierent events which could not rely on the same evidence to secure a conviction. The appellant’s trial was therefore proper and could not be impeached by his acquittal in the subsequent case whose facts were unrelated to the present case. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 6

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33. In the result, the Court nds no basis upon which to fault the learned Judge's evaluation and consideration of the evidence on record, including the appellant’s defence. Each of the issues raised by the appellant in contest of the conviction is without merit. Having considered the record of appeal, the grounds on which it is anchored, the rival submissions, the cited authorities and the law, 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. 32. Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR ………………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. …………………………………… JUDGE OF APPEAL . O. OKONG’O ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1810/eng@2026-09-25 7

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