Ooko v Republic (Criminal Appeal E086 of 2023) [2026] KECA 1664 (KLR) (31 July 2026) (Judgment)

Ooko v Republic (Criminal Appeal E086 of 2023) [2026] KECA 1664 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1664 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E086 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Samuel Ooko Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Homa Bay (Kiarie, J.) dated 30th March, 2022, in HCCRA No. E007 of 2021) Judgment 1.This is a second appeal. The appellant, Samuel Ooko, was arraigned before the Principal Magistrate’s Court at Mbita and charged with the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act. The particulars of the offence were that on 2nd November, 2019 at [Particulars Withheld],[Particulars Withheld] Sub-County within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of J.A., a child aged 15 years. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, particulars being that on the 2nd November, 2019 at [Particulars Withheld] in [Particulars Withheld] Sub-County within Homa Bay County, he intentionally and unlawfully touched the buttocks, vagina and breasts of J.A., a child aged 15 years old, with his hands. 2.The prosecution and defence were heard on their respective cases before the trial court (Hon. Japheth C. Bii, SRM) who delivered judgment in the matter on 10th March, 2021. He held that the complainant identified the appellant as the perpetrator, the medical evidence in the P3 form was consistent with penetration, and the birth notification produced in court showed that the complainant was 14 years old at the time of the incident. The court found the appellant guilty as charged, consequently convicted him and sentenced him to 20 years in prison. 3.Dissatisfied, the appellant appealed against his conviction and sentence in the High Court of Kenya at Homabay. In the judgment delivered on 30th March, 2022, the first appellate court analysed and evaluated the evidence adduced before the trial court and found that the prosecution proved all the ingredients of the offence of defilement. Accordingly, the appeal was found to lack merit and was dismissed. 4.The appellant is still aggrieved with the decision of the High Court and has preferred an appeal to this Court against both the conviction and sentence. The memorandum of appeal lists grounds including that: the first appellate court erred in law by failing to hold that the age of the complainant and penetration were never proved against the appellant to the required standard; the first appellate court failed to re-analyze and re-evaluate the whole evidence afresh and come to its own independent decision as held in Okeno vs. Republic (1972) EA 32; the first appellate court failed to note that the appellant was not accorded a fair trial and hearing in contravention of Article 50(1) and (2) of the Constitution of Kenya; the first appellate court failed to consider that the evidence was contradictory and inconsistent; the appellant was convicted on a defective charge that is incurable in terms of Sections 214 and 382 of the Criminal Procedure Code; the first appellate court failed to consider that the prosecution’s failure to summon the complainant’s mother was because she would testify to the detriment of their case; the mandatory minimum sentence of 20 years as provided for under Section 8(3) of the Sexual Offences Act was inconsistent with Article 50(2) (p) of the Constitution as read with Sections 216, 329 and 333(2) of the Criminal Procedure Code; and the appellant’s right to equal benefit and equal protection of the law under Article 27 was violated when the trial court failed to consider his mitigating circumstances. 5.When this appeal came up for hearing before us on 25th May, 2026, the appellant appeared virtually in person from prison and relied on his undated written submissions. The learned prosecution counsel Mr. Ogema appeared for the respondent and relied on their written submissions dated 20th May, 2026. The appellant further asked this Court to consider the period he served in remand when determining his sentence. In that regard, Mr. Ogema noted that the appellant was never released on bond during trial and conceded that this Court should compute the period the appellant spent in custody as part of the sentence in terms of section 333(2) of the Criminal Procedure Code, the appellant having been arraigned on 5th November, 2019. 6.Our role as a second appellate Court was stated by this Court in Karani vs. R [2010] 1 KLR 73 as follows:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 7.We have considered the grounds of appeal and the parties’ respective submissions. We sieve out the issues for determination to be whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement; whether the sentence imposed was lawful; and whether the appeal should be allowed. 8.To establish defilement, the prosecution must prove beyond reasonable doubt that there was penetration of the complainant’s genitalia; the complainant is a child below the age of 18 years old; and, that the penetration was by the appellant. The High Court re-evaluated the evidence and arrived at concurrent findings with the trial court as follows: the complainant PW1 and PW2 the clinical officer who examined PW1 confirmed penetration; PW1 knew the appellant and the appellant was indeed the perpetrator; and, while PW1 testified that she was 15 years old, the exhibited birth notification showed that PW1 was born on 20th January, 2005 so that on the date of the defilement on 2nd November, 2019 PW1 was about two months to attainment of 15 years of age. We have considered the evidence on record and find that there was no material contradictory or inconsistent evidence about the age of PW1 as at the time of the defilement contrary to the submissions by the appellant. Indeed, PW1 testified on 17th January, 2020 when she was due to attain 15 years of age on or about 20th January, 2020. 9.The appellant also submitted that the mother of PW1 ought to have testified and that failure by the prosecution to call her should be inferred to mean that her evidence would have been adverse to the prosecution case. We have examined the material on record which does not show that PW1’s mother was a crucial witness with likely relevant testimony and whose failure to testify would thereby displace the otherwise proved prosecution’s case. 10.We are therefore satisfied that the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement and there exist no basis for our interference with the concurrent findings of the two courts below in that respect and the resultant conviction. 11.Section 8(3) of the Sexual Offences Act states that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The sentence imposed against the appellant was imprisonment for the minimum 20 years. In the circumstances, it was lawful and not manifestly harsh or excessive. 12.However, as conceded to by the respondent, the appellant was in custody throughout the trial. Section 333(2) of the Criminal Procedure Code states that prison sentences start on the day they are pronounced. Further, it also requires courts to reduce the final sentence by the amount of time the convict already spent in police or remand custody before the trial ended. The appeal will partially succeed to the extent that sentence will run from the date the appellant was arrested on 3rd November 2019. 13.In the premises we confirm the appellant’s conviction and his sentence to imprisonment of twenty years but effective from 3rd November, 2019. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA.........................JUDGE OF APPEALE. C. MWITA.........................JUDGE OF APPEALB. ONGAYA.........................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR