Omuse v Republic (Criminal Appeal E165 of 2022) [2026] KECA 1366 (KLR) (10 July 2026) (Judgment)

Omuse v Republic (Criminal Appeal E165 of 2022) [2026] KECA 1366 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1366 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E165 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Geoffrey Omuse Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Eldoret (E.N. Maina, J.) and delivered by (H. Omondi, J.) on 22nd January, 2020.in HCCRA No. 24 of 2019) Judgment 1.Geoffrey Omuse,the appellant herein, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The particulars of the offence were that on 15th March 2017 at [Particulars Withheld] Village, Waitaluk Location within Trans Nzoia County, the appellant intentionally and unlawfully caused his penis to penetrate into the vagina of BN a child aged 12 years. 2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11 of the Sexual Offences Act. The particulars of the offence were that on the same date and in the same place, the appellant intentionally and unlawfully caused contact with his penis to the vagina of BN, a child aged 12 years. 3.The appellant further faced a second count of attempted defilement contrary to section 9 (1) as read with section 9 (2) of the Sexual Offences Act. The particulars of the offence were that on 15th March 2017 at [Particulars Withheld] Village, Waitaluk Location, Waitaluk District, within Trans Nzoia County, the appellant intentionally attempted to cause his penis to penetrate the vagina of RN a child aged 10 years. 4.Alternative to this count, the appellant was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same date and in the same place, the appellant intentionally and unlawfully caused contact with his penis to the vagina of RN, a child aged 10 years. 5.The appellant was arraigned before the trial court in Eldoret Chief Magistrate’s Court Criminal Case (SO) No. 51 of 2017, where he pleaded not guilty to all counts. Upon full trial, the appellant was convicted on main charges set out in count I and II. He was sentenced to 20 years imprisonment and 10 years imprisonment respectively. The sentences were ordered to run concurrently. 6.The appellant was dissatisfied with those findings. He lodged an appeal in Eldoret High Court, HCCRA No. 24 of 2019. In the judgment delivered on 22nd January 2020, E.N. Maina, J dismissed the appellant’s appeal. Aggrieved by that judgment, the appellant is now before us on a second appeal. 7.The appellant filed his notice of appeal dated 31st January 2020.He also filed his memorandum of appeal, grounds of appeal and supplementary grounds of appeal, raising several grounds impugning the findings of the High Court. In summary the appellant states that: the evidence of the prosecution was filled with inconsistencies, inadequacies and was not corroborated on account of shoddy investigations and insufficient witnesses; the ingredients of the offences were not proved beyond reasonable doubt; the charge sheet was inconsistent with the evidence adduced at trial; the appellant’s defence was not considered; he was remorseful; and that the sentence meted out was harsh, excessive and failed to take into account mitigating circumstances and the period he had spent in custody. For those reasons, he prayed that his appeal be allowed by quashing the conviction and setting aside the sentence. 8.The appeal was canvassed by way of written submissions on 29th April 2026. The appellant appeared pro se, while Principal Prosecution Counsel Mr. Okaka represented the respondent. 9.In his undated written submissions, the appellant abandoned his appeal on conviction and condensed his appeal to the sentence meted out. He prayed for leniency, submitting that the sentence of 20 years imprisonment was harsh. He urged this Court to exercise its discretion and take into account the fact that he was remorseful, sought forgiveness from the complainant, was the family breadwinner, vowed never to be a repeat offender, was growing old and had been rehabilitated. Additionally, the appellant urged this Court to consider the provisions of section 333 (2) of the Criminal Procedure Code in considering his appeal. He cited several decisions praying that the appeal be allowed. 10.The respondent opposed the appeal. Mr. Okaka filed written submissions, a case digest, a list and bundle of authorities dated 11th February 2026. He submitted that all the ingredients of the offences that the appellant faced at the trial court, were proved beyond reasonable doubt. On the allegation of a defective charge, he submitted that the defect was rectified through an amendment on 7th May 2018. The said defect was curable under sections 214 and 382 of the Criminal Procedure Code and the appellant suffered no miscarriage of justice. Turning to the medical evidence and the appellant’s defence, he submitted that both were properly considered and evaluated by the two courts below, leading to proper findings within the law. For those reasons, the respondent prayed that the appeal be dismissed. 11.This is a second appeal. Its jurisdiction is limited to parameters couched in section 361 of the Criminal Procedure Code, to a consideration of matters of law only. It is also settled that this Court will only interfere with matters of fact if it is demonstrated that the two courts below considered matters that should not have been considered, or failed to consider matters that they should have considered, or, looking at the evidence, they were plainly wrong. 12.It is also instructive to note that in his submissions, the appellant abandoned his appeal on conviction to concentrate on his appeal against the sentence. It is trite that sentencing is an exercise of discretion by the trial Court. In Omondi v Republic [2026] KECA 969 (KLR) the learned justices of appeal held;“Sentencing is a discretionary exercise by the trial court. An appellate court will not necessarily interfere with the sentence meted out unless it is demonstrated that the trial court acted on some wrong principles or overlooked some material facts. This Court in Bernard Kimani Gacheru vs. Republic (2002) eKLR stated thus;“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already stated is shown to exist.” 13.Following the appellant’s conviction on defilement on count I and attempted defilement on count II, the appellant, in his mitigation, urged the trial court to give him a sentence that would enable him take care of his family. He was treated as a first offender. Additionally, the trial court called for a pre-sentencing report. 14.After considering the appellant’s mitigation, his previous record and the pre-sentencing report, the appellant was on 7th February 2019, sentenced to 20 years’ imprisonment and 10 years imprisonment on count I and count II respectively. The sentences were ordered to run concurrently. In reevaluating his appeal, the first appellate court dismissed his appeal in its entirety. 15.Section 8 (3) of the Sexual Offences Act provides that a person convicted under the said section is liable upon conviction to imprisonment for a term of not less than twenty years. Section 9(2) of the said Act provides that a person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years. 16.We find that upon conviction, the appellant was sentenced respectively to the minimum sentences provided in the Sexual Offences Act. In Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic vs. Manyeso [2025] KESC 16 (KLR), the Supreme Court held that that minimum sentences set out in the Sexual Offences Act are lawful. 17.In view of the above, we have no discretion to interfere with the sentence meted out, which we find was within the confines of the law. As already noted, the sentence that was imposed was the minimum set out in law. However, we note that section 333 (2) of the Criminal Procedure Code was not taken into account when the appellant was sentenced by the trial court. In addition, the High Court did not consider this provision of the law. 18.For that reason, we allow the appeal to this extent. We thus order that the sentences meted out to the appellant, on both counts, be computed from the date he was arraigned in court, that is, 24th March 2017. The appeal succeeds to that extent only.It is so ordered. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb...........................................JUDGE OF APPEALW. KORIR..........................................JUDGE OF APPEALL. M. NDOLO..........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR