(Being an appeal from the original conviction and sentence by Hon. A. Munyuny in Sexual Offences Case No. E040 of 2023 of the Migori RM Court)
1. The Appellant Reagan Ochieng Kionge was convicted on two counts for the offence of defilement contrary to section 8(1) as read together with section 8 (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years imprisonment for each count on the 26 th day of June 2025.
2. The particulars of the offence were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant willfully and unlawfully caused his penis to penetrate the vagina of V.A.O a female aged 13 years.
3. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused touched the vagina of V.A.O a female aged 13 years with his penis.
4. He faced a second count whose particulars were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of G.A. a female aged 14 years.
5. In the alternative charge of count 2, he was he was charged with the offence of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused touched the vagina of G.A. a female aged 14 years with his penis.
6. The appellant pleaded not guilty and the matter proceeded to full trial. The prosecution called four witnesses while the appellant gave a sworn statement and did not call any witnesses. He was convicted of the two counts and sentenced to twenty years imprisonment for each count, to run concurrently. He was aggrieved with the judgment after which he instituted the present appeal.
7. The appellant filed his written submissions dated 20 th April, 2026 while those of the respondent are dated 15 th May, 2026. The Judgment herein is based on the written submissions which both parties relied upon in their entirety.
8. In his submissions, the Appellant acknowledged that the trial court exercised its jurisdiction on humanitarian grounds and the rule of natural justice in making an order that the sentences run concurrently. He further submitted that having perused the trial court proceedings, he dropped the appeal on conviction and proceeded with an appeal on sentence.
9. He pointed out that he was arrested on 13 th July, 2023 and was convicted on 26 th June, 2025 and he was in custody the entire trial period; a total of 1 year, 349 days and this ought to have been considered at conviction. He cited section 333 (2) of the Criminal Procedure Code which obligates the court to take into account the time already served in custody.
10. He stated that he had been in custody the entire time and there is no legal justification in denying him his absolute right. He placed reliance in the case of Benard Aganda Mayungi vs Republic CR. Appeal No. 6 of 2020 on the powers of the appellate court to interfere with any sentence passed by the trial court.
11. The Respondent on the hand, submitted that the three ingredients of defilement were established beyond reasonable doubt and his conviction was safe and well within the law.
12. On whether or not the sentence meted by the trial court was harsh, Counsel submitted that the sentence meted was proper. Counsel cited section 8(3) of the Sexual Offences Act, 2006 pointing out that the sentence prescribed is the minimum considering the ages of the complainants. They submitted that in the circumstances, the sentence was not harsh nor excessive to warrant any interference. Counsel relied on the case of Wanjema vs. Republic [1971] EA 493.
13. It is noteworthy that the Appellant’s appeal is against the severity of the sentence and only limited to the extent of the period he had been in custody which he contends that it ought to have been considered during sentencing. He stated that he has no contest on the sentence imposed. This court will therefore proceed on that single premise.
14. This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. See Okeno vs. Republic [1972] E.A 32.
15. This court also, takes into consideration that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
16. Taking into account the period when the appellant was in custody while the trial was ongoing, this court finds it merited for consideration. The court relies on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides as follows-
“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”.
17. Upon perusal of the proceedings of the trial court, the appellant was arrested on 13/07/2023. He took plea on 18/07/2023 and was granted bond of Kshs 300,000/= with surety of similar amount. From the record, the appellant remained in custody for the entire period during his trial and ought to be taken into account while computing his sentence.
18. The trial court failed to take into consideration the time in custody pursuant to section 333(2) of the Criminal Procedure Code. Accordingly, the appeal against sentence partially succeeds. The sentence of twenty (20) years' imprisonment is affirmed. The sentence shall run from 13 th July 2023, being the date the appellant was arrested, pursuant to section 333(2) of the Criminal Procedure Code. I note, however, considering the aggravating circumstances of this case, the sentences should have run consecutively.
19. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6 TH DAY OF AUGUST, 2026
Judgment delivered virtually in the presence of:
N/A for the Respondent
Reagan Kionge- Appellant
Susan Nzioka – Court Assistant
1. The Appellant Reagan Ochieng Kionge was convicted on two counts for the offence of defilement contrary to section 8(1) as read together with section 8 (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years imprisonment for each count on the 26 th day of June 2025.
2. The particulars of the offence were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant willfully and unlawfully caused his penis to penetrate the vagina of V.A.O a female aged 13 years.
3. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused touched the vagina of V.A.O a female aged 13 years with his penis.
4. He faced a second count whose particulars were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of G.A. a female aged 14 years.
5. In the alternative charge of count 2, he was he was charged with the offence of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between 11 th July, 2023 and 13 th July, 2023, at Wasimbete Ward, Suna West Sub-County in Migori County, within the Republic of Kenya, the appellant intentionally and unlawfully caused touched the vagina of G.A. a female aged 14 years with his penis.
6. The appellant pleaded not guilty and the matter proceeded to full trial. The prosecution called four witnesses while the appellant gave a sworn statement and did not call any witnesses. He was convicted of the two counts and sentenced to twenty years imprisonment for each count, to run concurrently. He was aggrieved with the judgment after which he instituted the present appeal.
7. The appellant filed his written submissions dated 20 th April, 2026 while those of the respondent are dated 15 th May, 2026. The Judgment herein is based on the written submissions which both parties relied upon in their entirety.
8. In his submissions, the Appellant acknowledged that the trial court exercised its jurisdiction on humanitarian grounds and the rule of natural justice in making an order that the sentences run concurrently. He further submitted that having perused the trial court proceedings, he dropped the appeal on conviction and proceeded with an appeal on sentence.
9. He pointed out that he was arrested on 13 th July, 2023 and was convicted on 26 th June, 2025 and he was in custody the entire trial period; a total of 1 year, 349 days and this ought to have been considered at conviction. He cited section 333 (2) of the Criminal Procedure Code which obligates the court to take into account the time already served in custody.
10. He stated that he had been in custody the entire time and there is no legal justification in denying him his absolute right. He placed reliance in the case of Benard Aganda Mayungi vs Republic CR. Appeal No. 6 of 2020 on the powers of the appellate court to interfere with any sentence passed by the trial court.
11. The Respondent on the hand, submitted that the three ingredients of defilement were established beyond reasonable doubt and his conviction was safe and well within the law.
12. On whether or not the sentence meted by the trial court was harsh, Counsel submitted that the sentence meted was proper. Counsel cited section 8(3) of the Sexual Offences Act, 2006 pointing out that the sentence prescribed is the minimum considering the ages of the complainants. They submitted that in the circumstances, the sentence was not harsh nor excessive to warrant any interference. Counsel relied on the case of Wanjema vs. Republic [1971] EA 493.
13. It is noteworthy that the Appellant’s appeal is against the severity of the sentence and only limited to the extent of the period he had been in custody which he contends that it ought to have been considered during sentencing. He stated that he has no contest on the sentence imposed. This court will therefore proceed on that single premise.
14. This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. See Okeno vs. Republic [1972] E.A 32.
15. This court also, takes into consideration that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
16. Taking into account the period when the appellant was in custody while the trial was ongoing, this court finds it merited for consideration. The court relies on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides as follows-
“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”.
17. Upon perusal of the proceedings of the trial court, the appellant was arrested on 13/07/2023. He took plea on 18/07/2023 and was granted bond of Kshs 300,000/= with surety of similar amount. From the record, the appellant remained in custody for the entire period during his trial and ought to be taken into account while computing his sentence.
18. The trial court failed to take into consideration the time in custody pursuant to section 333(2) of the Criminal Procedure Code. Accordingly, the appeal against sentence partially succeeds. The sentence of twenty (20) years' imprisonment is affirmed. The sentence shall run from 13 th July 2023, being the date the appellant was arrested, pursuant to section 333(2) of the Criminal Procedure Code. I note, however, considering the aggravating circumstances of this case, the sentences should have run consecutively.
19. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6 TH DAY OF AUGUST, 2026
Judgment delivered virtually in the presence of:
N/A for the Respondent
Reagan Kionge- Appellant
Susan Nzioka – Court Assistant