https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8635

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E055 OF 2025** **SAMWEL ODIDA (DECEASED)…………………………………………..……….APPELLANT** **VERSUS** **REPUBLIC…………………………………………………………………………RESPONDENT** **JUDGMENT** 1. The Appellant, Samwel Odida, was convicted by the Chief Magistrate’s Court at Kakamega in Sexual Offences Case No. E038 of 2024 for the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act and sentenced to twenty (20) years imprisonment. 2. Aggrieved by both conviction and sentence, he lodged the present appeal before this Court. 3. Before the appeal could be heard and determined, the Court was notified through official letter from the officer in charge Kisumu Maximum Security Prison,Charles Koech dated 5th February 2026 stating that the Appellant died on 5th February 2026 at about 7.23 a.m. while undergoing treatment at Kisumu County Referral Hospital. 4. The fact of death has not been controverted and there is no dispute that the Appellant is deceased. 5. The sole issue for determination is whether the appeal can proceed after the death of the Appellant. 6. It is a settled principle of criminal law that criminal responsibility is personal to the accused person. A criminal appeal is equally personal to the appellant and ordinarily cannot survive his death unless the law expressly provides otherwise. 7. **In Republic v Land Registrar, Uasin Gishu & Another Ex Parte Kipngeno Arap Ngeny [2010] eKLR**, the Court observed that criminal proceedings are personal in nature and generally come to an end upon the death of the accused person. 8. Similarly, in the **Ugandan decision of Uganda v Ashrafi M. Esmail [1969] EA 206, the East African**Court of Appeal recognized the general principle that criminal proceedings cannot continue against a deceased person because criminal liability does not survive death. 9. The same principle was restated by the Supreme Court of **India in Bondada Gajapathi Rao v State of Andhra Pradesh AIR 1964 SC 1645,** where the Court held that criminal appeals are personal to the accused and ordinarily abate upon the death of the appellant unless a statutory exception applies. 10. This Court is persuaded by the foregoing authorities and finds that the death of the Appellant rendered it impossible for the appeal to proceed to substantive determination. 11. Since the Appellant is deceased, there is no longer a party before the Court capable of prosecuting the appeal or benefiting from any orders that may be issued. 12. Accordingly, the appeal has abated by operation of law. 13. Consequently, Criminal Appeal No. E055 of 2025 is hereby marked as abated and is struck out. 14. The file is hereby closed. Orders accordingly. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 16TH DAY OF JUNE,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Ms. Emily Kiu for ODPP Appellant absent passed on.