Gakono v Republic (Criminal Appeal E155 of 2023) [2026] KECA 1645 (KLR) (31 July 2026) (Judgment)

Gakono v Republic (Criminal Appeal E155 of 2023) [2026] KECA 1645 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1645 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E155 of 2023 RB Ngetich, PO Kiage & S Radido, JJA July 31, 2026 Between Samson Mburia Gakono Appellant and Republic Respondent (Being an Appeal from the judgment of the High Court (D. Ogembo J) delivered on 28 March 2023 in Nairobi High Court Criminal Appeal No. 220 of 2020)) Judgment 1.Samson Mburia Gakono (the Appellant) was charged before the subordinate court at Kibera with two counts of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006 against two separate minors. The Appellant also faced two alternative counts of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The subordinate court convicted the Appellant on the two main counts. The court dismissed the alternative counts (though the proper procedure would have been to make no order on the alternative counts). Ultimately, the subordinate court sentenced the Appellant to life imprisonment on the two counts. The sentence on the second count was, however, kept in abeyance. The proper order should have been that the sentences run concurrently. 3.The Appellant was aggrieved with the conviction and sentence, and he preferred an appeal to the High Court (the superior court). 4.In a judgment delivered on 28th March 2023, the superior court (Hon Justice D. Ogembo) upheld the conviction and sentence by the subordinate court and dismissed the appeal. 5.The Appellant was not satisfied, and he lodged a Notice of Appeal dated 18th April 2023 against the judgment of the superior court. 6.A Record of Appeal embodying a 6-point Memorandum of Appeal was placed on this Court’s record on or around 23rd July 2023. 7.The Grounds of Appeal were:i.That the trial Magistrate (sic) erred in law and fact while basing the Appellant’s conviction in reliance with (sic) the evidence of the minors PW 1 and PW 2, which further rendered to tainted doubts (sic) under section 124 of the Evidence Act (sic) cannot stand as required.ii.That the trial Magistrate (sic) lost direction in evidence after being influenced with the evidence of the whole set of prosecution witnesses and failed to consider credibility of their testimonies.iii.That the trial Magistrate (sic) erred in law while rejecting the Appellant’s sworn defence without considering the same was not displaced by the prosecution side as per section 212 of the Criminal Procedure Code cap 75, Laws of Kenya.iv.That the learned judge failed in law and fact, considering the evidence adduced of the doctor was not enough to base a conviction.v.That the learned Judge failed in law and fact to rely on prosecution evidence that was riddled with contradictions and discrepancies, leading to selective judgment.vi.That I pray to be furnished with copy of the trial records and judgment to be able to raise more reasonable grounds during the appeal hearing. 8.The Appellant filed submissions dated January 2024. In the submissions, the Appellant indicated that he had amended his Grounds of Appeal after being served with the proceedings of the court below. 9.The Amended Grounds of Appeal were:i.That the learned High Court Judge erred in law to accept the evidence of identification and penetration from the two minors who were intoxicated and unable to comprehend the perpetrators of the offence in question.ii.That the High Court Judge further misdirected in law by not weighing afresh and exhaustively the complaints (sic) credibility, which was tainted and incredible.iii.That the life sentence was harsh, excessive and in conflict with the constitutional provisions in Article 27, 29 and 50(p) as well as the principles of sentencing, thus bad in law. 10.The Respondent filed submissions dated 18th February 2025, and the Appeal was heard on 3rd March 2026. The Appellant appeared in person, while the Learned Assistant Director of Public Prosecutions, Ms Jami Yamina, appeared for the Respondent. 11.The parties highlighted their submissions briefly. Appellant’s submissions 12.The Appellant challenged the admissibility of the evidence of the minors on identification and place of alleged defilement on the basis that they had acknowledged having taken alcohol on the material night. According to the Appellant, the minors’ mother and grandmother also acknowledged that the minors had informed them that they had been given alcohol. According to the Appellant, the minors' testimony was not credible. 13.The Appellant also challenged the adequacy of the evidence presented before the trial court on the proof of penetration. In this respect, the Appellant asserted that the testimonies of the mothers of the minors were unreliable because of the lapse of time from when the minors reported to them and when the minors were taken for medical treatment, and the fact that he (the Appellant) was not subjected to medical examination despite the minors being found with infections. 14.To buttress the submissions on identification and penetration, the Appellant cited Criminal Appeal No. 72 of 2013, Charles Wamukoya Karani v Republic, where it was stated:“the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant, and Michael Kihara Kariuki v R (2017) eKLR, where the Court stated: proof of defilement and the key ingredients of penetration is not dependent on the words used to describe the genital organs but is dependent on whether there was cogent, consistent and reliable evidence to prove the offence.” 15.On the credibility of witnesses, the Appellant relied on a passage from Ndungu Kimanyi v R (1979) KLR that:“a witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is a straightforward person, or raise suspicion about his trustworthiness or do (or say) something which indicated that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence.” 16.Lastly, the Appellant contended that the sentence of life imprisonment was harsh, considering his mitigation and that he was a first offender, and that in terms of Otieno v R (1983) eKLR a first offender should not be sentenced to a maximum sentence of life imprisonment, and that his right to mitigation under sections 216 and 326 and Articles 25(c) and 50(p) of the Constitution were not considered. 17.The Appellant also cited the Supreme Court in Muruatetu 2 that:“Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of a fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right.” 18.The Appellant therefore urged the Court to allow the Appeal. The Respondent’s submissions 19.The Respondent, on its part, urged that this being a second appeal, the Court could only consider questions of law as set out in Boniface Kamande & 2 Ors v Republic (2010) eKLR that:“On a second appeal to the Court, which is what the appeals before us are, we are under legal duty to pay proper homage to the concurrent findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based or if there was evidence, that it was of such a nature that no reasonable tribunal could be expected to base any decision upon it.” 20.According to the Respondent, the superior court properly addressed its mind to the elements of the charge of defilement, being proof of the age of the victim, penetration, and identification of the accused. 21.The Respondent urged the Court not to interfere with the sentence because it was legal and proper, and noted that different benches of the Court had reached different conclusions on the question of life imprisonment (see Juma Abdalla v Republic (2022) KECA 1054 (KLR); Manyeso v Republic (2023) KECA 827 (KLR) and Ayako v Republic (2023) KECA 1563 (KLR). 22.We have considered the Record of Appeal and submissions placed before us. As already adverted to, this is a second appeal and, therefore, section 361(1) of the Criminal Procedure Code is implicated. The section requires the Court to consider only matters of law. 23.In Karani v. Republic (2010) 1 KLR 73, this Court held:“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.” 24.One of the grounds of challenge posed by the Appellant before us is on identification. We have looked at the record of proceedings before the subordinate court and the superior court below. The Appellant did not directly challenge the question of his identification in the Petition of Appeal before the superior court below on the basis that the minors were under the influence of alcohol. 25.However, it is clear from the record that the subordinate court and the superior court made concurrent findings of fact that the Appellant was identified by the minors. 26.Identification is primarily a question of fact governed by principles of law, which include the circumstances, lighting, and procedures of identification (see Abdalla bin Wendo v Republic 20 EACA 166). Penetration is equally an issue of fact. To prove penetration, the testimony of the minor is usually corroborated by medical evidence. The minors’ testimonies of penetration were confirmed by the doctor who examined them, and both the subordinate and superior courts concluded that penetration was proved. 27.For us to disturb the concurrent findings of fact by the subordinate and superior courts on identification and penetration, questions of fact, it behoved the Appellant to demonstrate that the two Courts below 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 (Karani v R (supra). 28.The Appellant also challenged the findings by the courts below on the credibility of the complainants and witnesses. The credibility of witnesses is also fundamentally a question of fact. This Court addressed the question in Patrick Macharia v Republic (2010) KECA 53 (KLR) as follows:“The prosecution's case was dependent on the credibility of the witnesses. The two courts below found the prosecution witnesses as credible. This Court cannot properly interfere with the findings of the two courts below which were based on credibility of witnesses unless no reasonable tribunal could have made such findings.” 29.It is not open to us to lightly interfere with the findings of the two courts below on the credibility of witnesses, a question of fact. 30.The thread of the Appellant’s appeal before us went to the proof of the charges and the admissibility of the evidence upon which the subordinate court and superior court found that the Respondent had proved the charges against the Appellant beyond a reasonable doubt. 31.The Appellant did not isolate before us the factors the two courts below considered which they ought not to have considered, or the matters which they should have considered, but failed to. Equally, the Appellant did not show that the courts below were plainly wrong. This Court is, therefore, unable to interfere with the findings of fact by the courts below. 32.Lastly was the question of sentence. Severity of sentence is by statutory Command, a question of fact. This was made clear by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Ors (amicus curiae) (2024) KESC 34 (KLR) that:“Before further delving into the question of constitutionality or otherwise of the sentence, we must take cognisance of provisions of Section 361(1) of the Criminal Procedure Code which, in cases of appeals from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and the Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court. We produce the same verbatim as follows:361.Second Appeals1.A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this sectiona.on a matter of fact, and severity of sentence is a matter of fact; orb.against sentence, except where a sentence has been enhanced by the High Court unless the subordinate court had no power under section 7 to pass that sentence.appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters, they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently, the respondent's appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction.”" 33.At this stage of the appellate process, it is not open to us to interfere with the sentence that was meted out upon the Appellant and confirmed by the superior court. 34.It must be clear by now that the Appeal herein is devoid of merit. It is dismissed. DATED AND DELIVERED AT NAIROBI ON THIS 31STDAY OF JULY, 2026.P. O. KIAGE………………….…………..JUDGE OF APPEALR. NGETICH………………….…………..JUDGE OF APPEAL RADIDO S. OKIYO………………………………….JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR