Kennedy Otieno v Republic

sugarcane plantation, knocked her down, removed her clothing, and sexually assaulted her despite her screaming. He told her not to tell anyone and left after stating he did not want to be caught. She was then taken to Nyamuga Police Station, then to Rongo Police Station and Rongo Hospital for medical treatment. BOO. (PW2), the complainant’s grandfather with whom she lived, testied that PW1 was 12 years old and born in June 2002, and produced her Baptismal Dedication Certicate from Nyamuga SDA Church to verify her age. He conrmed that PW1 attended Nyamuga Primary School and that on 24th October 2014, at around 10:00 a.m., he and PW1’s grandmother were summoned to the school, and upon arriving at the headmaster's oce amidst a crowd in the school compound, he was informed that the appellant had deled his granddaughter inside a sugarcane plantation during break time. 4. APC Kennedy Opondo (PW3), Force No. 23xxx1 who was then based in Rongo Sub-County was deployed for national examinations duty at Nyamuga School on that day when he noticed a large, agitated crowd around midday, and learnt that a suspect had been apprehended by members of the public over alleged delement in a nearby sugarcane plantation. He took custody of the appellant and the young girl, escorting them to the head teacher's oce where the guardian was summoned. He then contacted his commander, who dispatched a police vehicle to transport the appellant to Kamagambo Police Station. Corporal Simon Tinga (PW5), Force No. 198xxxxx28, who was also stationed at the time stationed at Rongo Sub- County Headquarters was sent to the school, where he found the appellant in the custody of PW3, Corporal Tinga re-arrested the appellant, placed him and the complainant into the police vehicle, and transported them to Kamagambo Police Station. 5. PW1 was subsequently examined by Lilian Nyaboke (PW4), a Clinical Ocer attached to Rongo SubCounty Hospital, and she noted the complainant was an epileptic patient on medication, and her genital examination revealed a broken hymen, though there were no tears on the labia, and the cervix and vagina appeared normal; while laboratory tests revealed a whitish vaginal discharge, presence of pus and epithelial cells, and a urinary tract infection (UTI). PW4 produced a signed the P3 form lled on 27th October 2014 as an exhibit. The oence was investigated by PC Ronald Nyamweya Makori PW6), Force No. 7xxx4 who was attached to Kamagambo Police Station who stated that the appellant and complainant were apprehended in a plantation by members of the public on 22nd October 2014, and handed over to an AP ocer before being re-arrested. The complainant received medical treatment, and a P3 form was completed. 6. When put on his defence, the appellant testied that on 24th October 2014 he went to the school where he had been working as a toilet constructor at around 10:30 a.m, and found that it was a prayer day for class 8 candidates. While sitting under the tree, the complainant's grandfather approached and accused him of deling his grandchild. Soon after, an ocer guarding exams at the secondary school called him over, informed him of the allegation, tied his hands with a rope, and held him. He was arrested by police ocers, taken to Rongo in a police vehicle around 1:00 p.m., and held in cells for 3 days before being arraigned in court. He denied committing the oence. 7. The trial Magistrate held that the appellant’s defence conrmed that he had been arrested at the school on the material day, and the prosecution was able to prove the guilt of the accused beyond reasonable doubt. On appeal to the High Court, Mrima JA noted that despite the concession by the State, the High Court as the rst appellate Court was duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter, and after doing so, found that the evidence adduced was enough to nd a conviction even without the evidence of the other potential witnesses. 8. The appellant has raised four grounds of appeal in his Memorandum of Appeal led in this Court, namely that he is a rst time oender and remorseful, during the time of arrest, he was still a young man under peer pressure and a lay man, and that the sentence to be reviewed to a least severe sentence; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1911/eng@2026-09-25 2

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he has undergone several rehabilitation and reforms programs within the institution and is hence able to reintegrate back to the society; and that the period he spent in custody was not considered by the trial Court. 9. During the hearing of the appeal the appellant, was present appearing virtually from Rachuonyo G. K. Prison, while learned Principal Prosecution Counsel, Mr. Mwangi who was holding brief for learned Prosecution Counsel, Mr. Ikol, appeared for the respondent. The appellant placed reliance on his undated written submissions, while Mr. Mwangi relied on written submissions dated 10th July 2025. 10. This appeal is therefore against the sentence only, and the appellant in this regard seeks a review of the sentence to a less severe or non-custodial sentence, and requests that the time spent in remand custody be factored into the computation of his 20-year prison sentence, pursuant to Section 333(2) of the Criminal Procedure Code. Mr. Mwangi on his part acknowledges the legal obligation under Section 333(2) of the Criminal Procedure Code to factor remand time into sentence computation. Counsel noted that the appellant was arrested on 24th October 2014 and was in custody on 26th January 2015 and was not bonded out. 11. Section 361(1)(a) of the Criminal Procedure Code grants this Court jurisdiction on a second appeal to entertain an appeal against sentence from the High Court where the appeal raises a point of law regarding the sentence imposed, either on the lawfulness of the sentence, or the power of the Court to impose the sentence. The appellant was sentenced to 20 years’ imprisonment under Section 8(3) of the Sexual Offences Act, which provides that: “a person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 12. In its decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (2024) KESC 34 (KLR), the Supreme Court of Kenya addressed the legality of minimum sentences and particularly whether the ratio decidendi in Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (the Muruatetu Case) on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act 13. The Supreme Court held as follows in this regard: “ 57. 57. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the oor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…. 58. In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital oences, are vastly dierent from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting dierent sentencing for criminal oences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous oenders, and eliminating unjustiable sentencing disparities.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1911/eng@2026-09-25 3

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14. The sentence of twenty (20) years that the trial magistrate imposed upon the appellant was the minimum sentence provided under section 8(3) of the Sexual Offences Act. The sentence was, therefore legal and this Court has no jurisdiction to vary or review the sentence in light of the above-cited decision by the Supreme Court. The respondent’s counsel has however conceded that the sentence should factor the period the appellant spent in remand custody before bond was issued, pursuant to Section 333(2) of the Criminal Procedure Code. Upon perusal of the record, we have conrmed that the appellant was arrested on 24th October 2014 and he was released on bond on 26th January 2015. This period spent in custody was also conrmed by the appellant during the hearing. 15. The provisions of section 333(2) of the Criminal Procedure Code provide that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence on the following terms: “Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 16. This Court in the case of Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs Republic [2018] KECA 743 (KLR) explained as follows as regards the manner of applicability of the said section: “By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take eect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We nd that the rst appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012." 17. The upshot of the foregoing analysis is that the appellant’s conviction for the oence of delement is armed, while his appeal against the sentence partially succeeds only to the extent that that the 4 months and 2 days the appellant spent in remand custody between his arrest on 24th October 2014 and his release on bond on 26th January 2015, be taken into account in computing his sentence of 20 years’ imprisonment pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. 18. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1911/eng@2026-09-25 4

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................................ JUDGE OF APPEAL L. ACHODE ................................ JUDGE OF APPEAL J. MATIVO ................................ JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1911/eng@2026-09-25 5

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