https://new.kenyalaw.org/akn/ke/judgment/keca/2026/935

Jommo alias Franco v Republic (Criminal Appeal E033 of 2022) [2026] KECA 935 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 935 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E033 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between Godfrey Makuto Jommo alias Franco Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kakamega, (Musyoka, J) dated 17th January 2020 in HCCRA No. 123 of 2018 Criminal Appeal 123 of 2018 ) Judgment 1.This second appeal is against the sentence only, imposed on the appellant, Godfrey Makuto Jommo alias Franco, by the trial court and confirmed by the first appellate court. The appellant was charged before the Senior Principal Magistrate’s Court at Mumias with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars were that the appellant on 14th August, 2014 at 2.00 p.m at [Particulars Withheld], Koyonzo market, Matungu Sub-County of Kakamega County, intentionally caused his penis to penetrate the vagina of SO (real name redacted) a child aged 14 years. In the alternative, he faced a charge of committing an indecent act with a child contrary to Section 11(1) of the same Act, particulars being that he on the same day, time and place intentionally caused his penis to come into contact with the vagina of SO, a child aged 14 years. The appellant denied both counts and his trial soon thereafter ensued. 2.The brief facts of the case, as gleaned from the trial record, are that on 14th August 2014, SO, then aged 14 years, was sent by her parents to Koyonzo market to buy clothes for their newly circumcised son. While at the market, she purchased clothes from a young man she did not know, who nonetheless turned out to be the appellant. When she asked for her change of Kshs. 30, the appellant asked her to accompany him to an Mpesa shop nearby to withdraw the same and she complied. Instead, he led her to [Particulars Withheld] and they entered room 5. 3.Whilst in there, the appellant grabbed and strangled her, threw her onto the bed, and defiled her. In the process she screamed which attracted members of the public who immediately contacted the nearby Administration Police Post whose officers, including Inspector Alphonse Masila, Senior Sergeant David Walekwa and Corporal Alfred Nyukuri responded. On reaching the scene they found the appellant inside the Room with the complainant, who was bleeding profusely from her private parts. The bedsheets were blood-stained so were the complainant’s clothing. They also came across receipts showing that the appellant had booked the room. All these recoveries were secured and were later tendered in evidence during the trial. 4.SO was later rushed to Matungu Sub-County Hospital and subsequently referred to Kakamega General Hospital where she was admitted unconscious but underwent emergency treatment. Medical personnel later informed her parents that a foreign object, namely a bottle had been removed from her private parts and that she required stitching due to severe injuries. She was subsequently admitted in hospital for that purpose for twenty days. As the appellant was really caught in the act he was arrested at the scene and subsequently charged as aforesaid. 5.Put on his defence, the appellant denied committing the offences. The trial court, upon evaluation of the evidence tendered, found that the prosecution had proved its case against the appellant beyond reasonable doubt. It accordingly convicted him on the main count and sentenced him to twenty years imprisonment. It rightly made no finding on the alternative charge. 6.Aggrieved by the conviction and sentence, the appellant lodged an appeal in the High Court of Kenya at Kakamega on various grounds. The first appellate Court, upon re-evaluating the evidence, upheld the trial court’s findings. As a result, it dismissed the appeal in its entirety. 7.Being dissatisfied by the judgments of the two courts below, the appellant through an undated memorandum of appeal is before this Court on second appeal on grounds limited to sentence only claiming that the first appellate court failed to consider that he was transformed, reformed and well rehabilitated and therefore amenable to reduction of the sentence to the least form of punishment; that as circumstances keep changing and aspects of conviction are met, continuous reduction in line with progress made towards rehabilitation is necessary and that he was a sole breadwinner to his family of school-going children. That he was remorseful for the offence and undertook to be a law-abiding citizen. He therefore prayed to us to consider him for a non-custodial sentence to help ease congestion in the correctional facilities. 8.When the appeal came up for hearing, the appellant appeared in person from Kitale Annex Prison on our virtual platform while MS. Ondieki, learned prosecution counsel appeared for the respondent. Both parties opted to rely entirely on their respective written submissions that they had filed and exchanged. 9.In his submissions the appellant merely reiterated and expounded on the grounds of appeal aforestated. We need not therefore rehash them. 10.In opposing the appeal, counsel for the respondent submitted that the sentence of twenty years imposed on the appellant was neither harsh nor excessive, and cited the Supreme Court decision in Republic v Joshua Gichuki Mwangi & 4 others (amicus curiae) eKLR 2024 – SC Petition No. E018 of 2023, which upheld mandatory minimum sentences under the Sexual Offences Act. 11.We have considered the record of appeal, the grounds raised, and the rival submissions of the parties. 12.In this appeal, the appellant has expressly limited it to the sentence imposed under Section 8(4) of the Sexual Offences Act. The conviction itself is not challenged. The law on sentence regarding second appeals is settled. It is that sentencing is a discretionary power of the trial court, and an appellate court will only interfere with it where it is shown that the trial court acted on wrong principles, overlooked material factors, or that the sentence is manifestly excessive in the circumstances of the case. See Ogalo s/o Owuora v Republic [1954] 21 EACA 270 and Wanjema v Republic [1971] EA 493. Where the sentence is lawful and within the prescribed statutory limits, this Court will not interfere merely because it would have imposed a different sentence. 13.The appellant was convicted of defilement of a child aged 14 years.Section 8(4) of the Sexual Offences Act prescribes a sentence of not less than twenty years’ imprisonment in a such case. The trial court imposed the statutory minimum sentence of twenty years imprisonment, which was affirmed by the High Court. The appellant urges this Court to reduce the sentence on account of rehabilitation, remorse, family hardship, and prison congestion. While these are mitigating considerations, they cannot override the statutory framework. 14.The offence committed was grave, involving a minor who suffered serious injuries and hospitalization and the appellant even had the temerity to insert a bottle in her private parts. The sentence imposed though soft in our view, was within the law, proportionate to the gravity of the offence, and consistent with the objectives of deterrence and protection of vulnerable children. The Supreme Court in Republic v Joshua Gichuki Mwangi & 4 others (supra), reaffirmed the constitutionality of mandatory minimum sentences under the Sexual Offences Act, underscoring the legislative intent to protect minors from sexual abuse. 15.We are satisfied that there was no error of law in the sentence imposed by the trial court, and affirmed by the High Court. The appellant’s plea for reduction based on rehabilitation and family hardship though well intentioned, does not meet the threshold for interference with the sentence imposed on second appeal. 16.Accordingly, we are satisfied that the appeal is devoid of merit and we dismiss it. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.ASIKE-MAKHANDIA.............................JUDGE OF APPEALH.A. OMONDI.............................JUDGE OF APPEALL. KIMARU.............................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR