Karabu v Republic (Criminal Appeal E055 of 2023) [2025] KECA 2108 (KLR) (5 December 2025) (Judgment)

Karabu v Republic (Criminal Appeal E055 of 2023) [2025] KECA 2108 (KLR) (5 December 2025) (Judgment) Neutral citation: [2025] KECA 2108 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E055 of 2023 AK Murgor, F Tuiyott & P Nyamweya, JJA December 5, 2025 Between Onesmus Karisa Karabu Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Voi (F. Amin, J).) delivered on 27th April,2020 in HCCA No. 10 of 2018) Judgment 1.The Appellant, Onesmus Karisa Karabu was charged with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8 (4) of the [Sexual Offences Act](/akn/ke/act/2006/3) No. 3 of 2006. He was further charged with an alternative charge of committing an indecent act with a child, contrary to Section 11(1) of the [Sexual Offences Act](/akn/ke/act/2006/3) No. 3 of 2006. 2.The particulars of the offence were that on 27th May 2016, he intentionally and unlawfully caused his penis to penetrate the vagina of LC, a girl aged 16 years. It was further alleged that on the same date he touched the buttocks and breasts and vagina of LC, PW2, the complainant, a girl aged 16 years. 3.He pleaded not guilty and the matter proceeded to hearing where the prosecution called 6 witnesses. 4.PW1, mother of the complainant testified that at the time, she was at [Particulars Withheld] village, while her daughter was staying with her grandmother at [Particulars Withheld]; that on 25th May 2016 at around 6.00 a.m, her mother phoned her to inform her that LC had not returned home from school; that she left her home to go and look for LC. She stated that she went round Ghazi and [Particulars Withheld] villages asking if anyone had seen her daughter. On 27th May 2016, she met one lady, Hope, who informed her that her daughter had been seen at the house of one Onesmus Karisa, the Appellant. 5.As PW1 was talking to Hope, one Onesmus passed by, and Hope pointed at the Appellant as the person who was with her daughter LC. When she saw the Appellant, he was someone familiar to her, as she used to see him in their village. PW1 stopped the Appellant and inquired from him if he was the person keeping her daughter in his home, to which question he did not answer and instead, walked away. 6.PW1 and Hope followed the Appellant and upon reaching his house, which was newly built, they saw that it had been padlocked from outside. The Appellant unlocked the padlock and on opening the door they went in and found her daughter, LC inside the one roomed house. PW1 immediately called the village elder who in turn directed her to the area Assistant Chief, whereupon, two local administrators arrived at the scene. The Assistant Chief called police officers, who arrived at the Appellant’s house in their vehicle and arrested both the Appellant and the complainant. 7.PW2, the complainant a child aged 16 years stated that on 24th May 2016, she left school at around 4.30 p.m. and went to see her Aunt RA at Ghazi shopping centre to collect her pen and sewing thread. She left her aunt’s place at around 6.30 p.m. and headed to her home. On the way, she met with the Appellant, Onesmus Karisa whom she said, she used to see herding animals belonging to a neighbour; that the Appellant asked her to accompany him to his place, which request she declined; that the Appellant insisted she accompany him, whether she liked it or not. He told her that if she continued to resist, he would cut her with the panga which he was holding. 8.PW2 stated that she was alone on the road, and the Appellant soon overpowered her, and pulled her by the hand to his house. Whilst in the house, the Appellant pushed her onto the bed and started to remove the Polytechnic uniform, a black skirt and white blouse that she was wearing. He first removed the skirt, her pants. and then her blouse. Thereafter, he started removing his own clothes. At that point, she shot up from bed so as to dress-up and get out of the house, but in a frightening tone, the Appellant told her that he would cut her into pieces with the panga; that the threats subdued her. The Appellant then removed his short, red shirt and underpants. By this time darkness had fallen, and the Appellant had lit a lantern to illuminate the house. She was made to lie on the bed facing up, after which he lay on her, and caused his erect penis to penetrate into her vaginal opening, whereupon he proceeded to defile her for about half an hour. 9.Thereafter, the Appellant rose from the bed, put on his clothes and told her that he was going to the shops. He ordered her not to leave. As he left, he locked the door from outside. After a while, he returned with a loaf of bread, which they ate. He then turned off the lantern and they slept together until the following morning. 10.When she woke up, PW2 told the Appellant that she wanted to go to school, but he left her and went out to perform his herding duties, locking the house from outside. She stated that she remained in the house until 4.30 p.m, unable to escape as all the windows had wire mesh grills. After grazing the animals, the Appellant returned to the house and demanded to have sex with her which she declined, but he once again forcefully defiled her. 11.On 26th May 2016, the same routine was followed, only this time, they did not have sex. On 27th May 2016, the Appellant left the house to graze the animals, but at around 5 p.m, he returned in the company of her mother, PW1, the lady called Hope, and a village elder, and later the area Assistant Chief joined them. When her mother interrogated the Appellant, he claimed to have married her. PW2 stated that she was arrested together with the Appellant, and on 28th May 2016, she was taken to hospital for examination. On 29th May 2016, she was released to her mother, and issued with a P3 form. 12.PW3 is Dr. Kagona Gitau a medical officer based at Moi County Referral hospital. He stated that the complainant had been taken to hospital with a history of having been defiled by a person known to her. PW3 testified that on examination, the external genitalia were normal, but the hymen was broken. There was no presence of discharge from the genital organ. The urinalysis showed urinary tract infection, and that the girl looked unkempt and despondent. 13.The complainant’s grandmother, PW4 stated that she was residing with her granddaughter PW2, and that on 24th May 2016 she left for Ghazi Polytechnic but did not return in the evening as expected. She informed PW1 who immediately started looking for PW2; that on 27th May 2016, PW1 called her and informed her that PW2 had been found at the house of Karisa; that when she when to the house, she met PW1, PW2, the village elder and found that the Appellant was a person known to her as a herds boy working at a neighbour’s home. 14.PC Mercy Njoroge PW5 of Voi Police Station stated that on 27th May 2016, while she was on night duty, at around 11.00 p.m, the Chief of Ghazi area called and informed them that a man called Onesmus had been found holding a school girl in his house, and that he had defiled her; that they went to the house and found the Appellant and the girl inside a house; that they arrested the two and escorted them to Voi Police Station. The Appellant was charged, while the girl was treated as a child in need of care and protection. 15.PC Josephine Waswa PW6 also of Voi Police Station was the officer who investigated this matter. 16.When placed on his defence the Appellant gave a sworn statement and did not call any witnesses. He stated that on 23rd May 2016, he gave Kshs 25,000 to his employer, Eliab Matasa Kisumu, to enable the two of them jointly purchase a motor cycle to deliver milk to their customers. On 27th May 2016, he was called from his home in Kilifi County and informed that his father had been arrested, charged and convicted for the offence of being in possession of illicit brew, and fined Kshs 15,000. He decided to recall back the money he had given to his employer the previous day, to enable him bail-out his father; that his employer became evasive and kept postponing and giving him false timelines in which he would refund the money. Eliab called a meeting consisting of the area Assistant Chief, village elder and chairman of Mbulia ranch, and explained that he had spent the money on a different issue and requested for more time to refund the money. The chief and village elder asked him to make an instant refund, at which point, he called the police, and when they came, the Appellant was taken to Voi Police Station. He stated that while in the police cell, Eliab visited him and told him that if he dropped his demand for Kshs 25,000 he would withdraw the charges, but the Appellant insisted that he refund him his money. He denied having been found with the complainant. 17.The trial magistrate upon considering the matter convicted the Appellant of the offence and sentenced him to serve 15 years imprisonment. Aggrieved the Appellant filed an appeal to the High Court on the grounds that the learned trial magistrate was in error in both law and fact in convicting and sentencing him while not considering that, the Appellant was not assigned an advocate by the state as required by the law since he is a layman; in not considering that, the burden of proof was not discharged beyond reasonable doubt and in failing to consider that, the Appellant was a first offender hence deserving of an alternative sentence. 18.The first appellate judge dismissed the appeal and upheld the conviction but enhanced the sentence to 20 years imprisonment. Aggrieved the Appellant has filed the appeal on the grounds that; the learned Judge was in error in enhancing the sentence without notice in violation of Section 382 of the Criminal Procedure Code; in upholding his conviction and by failing to consider the provisions of section 333 (2) of the Criminal Procedure Code yet the Appellant had been remanded in custody from the time of arrest until his conviction period; in failing to consider the omission by the trial court to explain to the accused his rights to legal representation and the Right to be represented by an advocate of his choice at the state expense in breach of Article 50 (2) (g) and (h) of the [Constitution](/akn/ke/act/2010/constitution). 19.Both the Appellant and the Respondent filed written submissions, and when the appeal came up for hearing on a virtual platform the Appellant appeared in person from Manyani Prison, while learned Prosecution Counsel Ms. Mutua Assistant Director of Public Prosecutions appeared for the Respondent. 20.Whilst submitting before the Court, the Appellant stated that he would rely entirely on his written submissions, whilst also clarifying that his appeal was against the sentence and not against the conviction. 21.In his written submissions, the Appellant submitted that the sentence imposed was wrongfully enhanced by the High Court without notice in violation of Section 382 of the Criminal Procedure Code given that the sentence of 15 years imprisonment was imposed by a court of competent jurisdiction and that the trial magistrate imposed the sentence of 15 years as specified by Section 8 (4) of the [Sexual Offences Act](/akn/ke/act/2006/3) after considering the aggravating factors and the mitigating circumstances on record. 22.The Appellant further submitted that he was arrested on 27th May 2016 and remained in remand custody pending determination of his case; that judgement was delivered on 20th May 2017 where he was found guilty as charged, yet the sentence imposed on him did not take into account the period spent in remand custody, which period was not subtracted from the 15 years term imposed which was later enhanced to 20 years imprisonment by the appellate court. 23.Finally, the Appellant submitted that he was not afforded legal representation as prescribed by law; that he was not informed of the seriousness of the offence and the penalty and of any right to legal representation. He contended that this was his constitutional right which the trial court violated which led to a miscarriage of justice that went to the root cause of a fair trial. 24.On their part, learned Prosecution Counsel for the State submitted that the Appellant was properly identified; that the Appellant abducted the complainant and held her hostage in his house for 3 days, and each day he would leave her locked in the house to go about his daily duties, and that the complainant was subsequently found in his house. 25.Counsel submitted that the Appellant’s defence was neither cogent nor believable as he introduced matters that did not arise during examination in chief or cross examination of the prosecution witnesses; that his alleged defence had no nexus or connection to the charges he was facing; that further, neither the complainant nor the other prosecution witnesses were aware of or party to the grievances that he held against his employer. 26.Counsel concluded that the evidence against the Appellant proved the charges beyond reasonable doubt and rendered both the conviction and sentence as safe. 27.This is a second appeal. Section 361(1) of the Criminal Procedure Code enjoins us to consider only questions of law on second appeal. In the case of Karani vs Republic [2010] 1 KLR 73 the court stated thus:“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.” 28.Having reviewed the Record of appeal and the submissions and authorities cited by the parties, it is apparent that this appeal is against the upholding of the appellant’s conviction and the sentence imposed by the High Court. Therefore, the issues that arise for determination are threefold. The first issue is whether the High Court was in error in upholding the conviction despite the omission by the trial court to inform the Appellant of his constitutional right to legal representation, including the right to be represented by counsel at state expense, as guaranteed under Article 50(2)(g) and (h) of the [Constitution](/akn/ke/act/2010/constitution). The second issue is whether the High Court failed to take into account the mandatory requirement of Section 333(2) of the Criminal Procedure Code, which obligates the court to consider the period spent in remand custody prior to conviction and sentencing. And third is the issue of whether the High Court wrongly enhanced the Appellant’s sentence without giving prior notice to him, thereby contravening the provisions of Section 382 of the Criminal Procedure Code. 29.On legal representation, the Appellant claimed that his right to legal representation was violated; that Article 50(2) of the [Constitution](/akn/ke/act/2010/constitution) guarantees every accused person the right to a fair trial; that more specifically, Article 50(2)(g) provides for the right “to choose, and be represented by, an advocate, and to be informed of this right promptly”; that further, Article 50(2)(h) guarantees the right “to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 30.It was the Appellant’s assertion that the trial court failed to explain or bring to his attention these fundamental rights; that this omission deprived him of the opportunity to secure legal representation or to benefit from representation by a counsel funded by the State. It was further asserted that the failure by the trial court to comply with these constitutional safeguards vitiated the fairness of the proceedings, thereby rendering both the conviction and the subsequent upholding of the conviction by the High Court unsafe. 31.In the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) vs Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) this Court underscored the scope of Article 50(2)(g) and (h) of the Constitution, and held that the need for State-funded legal representation arises where substantial injustice is likely to result, particularly in cases involving complex or serious charges, or where the accused lacks the ability to effectively participate in the trial. 32.Much as in the present case, the Appellant did not raise the issue of legal representation before the trial court, the issue was raised in the High Court but was not addressed. Needless to say, the record shows that the Appellant actively participated in the proceedings and strenuously cross-examined the prosecution witnesses. Nothing on record suggested that he suffered any substantial injustice nor was he prejudiced in any way as a result of the absence of legal representation. Consequently, there is no merit in the Appellant’s contention that his rights to a fair trial under Articles 50(2)(g) and 50(2)(h) of the [Constitution](/akn/ke/act/2010/constitution) were infringed. This ground is therefore dismissed. 33.Turning to the issue that the High Court failed to take into account the mandatory requirement of Section 333(2) of the Criminal Procedure Code, which mandates a court to consider the period spent in remand custody prior to conviction and sentencing, Section 333(2) provides:“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 34.This Court in the case of Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs Republic (Criminal Appeal 135 of 2016) [2018] KECA 743 (KLR) stated:“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. 35.Similarly, in the case of Bethwel Wilson Kibor vs Republic [2009] eKLR the court stated that:“By proviso to section 333(2) of Criminal Procedure Code, where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years’ period that the appellant had been in custody. The appellant told us that as at September 22, 2009, he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.” 36.Additionally, the Judiciary Sentencing Policy Guidelines, provide:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 37.Clearly, Section 333(2) and the above cited authorities specify that the period during which an Appellant was held in custody before being sentenced must be taken into account in meting out the sentence. 38.A consideration of the Judgment discloses that the trial judge did not take into account the period already spent by the Appellant in custody. Taking into account the period spent in custody means considering the period so as to reduce the imposed sentence proportionately by the period already spent in custody. The record shows that the Appellant was arrested on 27th May 2016 and remained in remand custody pending determination of his case; that the trial court’s Judgment was delivered on 20th December 2017. He was therefore in custody for a year and 7 months before conviction. He was therefore entitled to have the period of the sentence imposed reduced by the period in remand custody. On this basis this ground has merit and is allowed. 39.On the issue of whether the High Court was in error in enhancing the Appellant’s sentence without giving prior notice to him, thereby contravening the provisions of Section 382 of the Criminal Procedure Code which provides:“Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omissions or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 40.In the case of JJW vs Republic [2013] eKLR this Court when dealing with an appeal where the appellant had been sentenced to seven years imprisonment but the sentence was enhanced to ten years imprisonment without any notice to the appellant and without a cross appeal by the State held that:“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal." 41.In the instant appeal the record shows that, the Appellant was not issued with any notice to enhance the sentence nor provided with any form of warning by the learned Judge. But the Judge nonetheless enhanced the sentence. This enhancement was imposed without giving the Appellant an opportunity to oppose or dissuade the court from enhancing the sentence. This was a misdirection on the part of the learned Judge. For this reason, this ground is merited. 42.In the end, we find that the appeal against the upholding of the appellant’s conviction fails and is hereby dismissed. The appeal against the sentence imposed by the High Court partially succeeds, to the extent that we set aside the sentence of 20 years imposed by the High Court, and instead uphold the sentence imposed by the trial court of 15 years imprisonment. Further, we direct that the 1 year and 7 months which the Appellant spent in custody prior to being sentenced shall be deducted from the 15 years term of imprisonment.And it is so ordered. **DATED AND DELIVERED AT MOMBASA THIS 5 TH DAY OF DECEMBER, 2025.****A. K. MURGOR****………………………………****JUDGE OF APPEAL****F. TUIYOTT****………………………………****JUDGE OF APPEAL****P. NYAMWEYA****………………………………****JUDGE OF APPEAL** I certify that this is the true copy of the originalsigned**DEPUTY REGISTRAR**