Ongony v Republic (Criminal Appeal 126 of 2015) [2021] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that second appeals on sentence fail unless the sentence was unlawful or wrongly increased, and Muruatetu did not invalidate the Sexual Offences Act minimums.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal, on a second appeal limited to sentence, may interfere with a sentence imposed by the trial court
- 2.Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional in light of Francis Karioko Muruatetu & anor v Republic
- 3.Whether the circumstances of the case justify interfering with the 20-year sentence
Key legal issues
#Scope of a second appeal against sentence under section 361 of the Criminal Procedure Code
A second appeal is restricted to matters of law; severity of sentence is a matter of fact, and the Court can only entertain an appeal against sentence where the sentence was enhanced by the High Court or the subordinate court had no power to impose it.
The Court invoked section 361 of the Criminal Procedure Code, under which a second appeal lies on matters of law only. It classified severity of sentence as a matter of fact and identified the narrow exceptions - enhancement on first appeal or lack of power in the subordinate court to pass the sentence. Neither exception arose, as the sentence of 20 years concurrent was within the trial court's power and was not enhanced.
Effect of Muruatetu on the mandatory minimum sentence under section 8(3) of the Sexual Offences Act
Muruatetu does not make the section 8(3) minimum sentence illegal; it merely restores discretion to impose a lesser sentence where circumstances justify it.
The Court accepted that although section 8(3) prescribes a minimum sentence, the Supreme Court's decision in Muruatetu did not declare such minimums illegal. Instead, it confers discretion on the sentencing court to depart from the minimum, but only where the circumstances before the court justify such departure. This framing preserved the statutory minimum as the default while acknowledging limited discretion.
Whether the trial court's 20-year concurrent sentences should be disturbed
No; the trial court properly considered the circumstances and mitigation, and the concurrency of the sentences meant the appellant served 20 instead of 40 years.
The Court noted the appellant was convicted of defiling two minors and that ordering the two 20-year sentences to run concurrently reduced what could have been 40 years to 20. The trial court had considered the circumstances and the appellant's mitigation. On that basis the Court found no justification for interfering and dismissed the appeal, affirming the sentence.
Legal principles established
#- On a second appeal under section 361 of the Criminal Procedure Code, severity of sentence is a matter of fact and the Court of Appeal cannot interfere with a sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it.
- Muruatetu does not render the minimum sentences under section 8(3) of the Sexual Offences Act illegal; it gives the sentencing court discretion to impose less than the minimum where the circumstances justify it.
Court orders
#- 1.The appeal against sentence is dismissed
- 2.The sentence of 20 years' imprisonment imposed by the trial court (running concurrently) remains in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal to the Court of Appeal restricted to matters of law)
Relief refused
#Reconsideration/reduction of the 20-year minimum sentence under section 8(3) of the Sexual Offences Act
The circumstances of defiling two minors did not justify the Court interfering with the sentence; the trial court considered the mitigation
Costs
No costs order was made in the judgment; the judgment ends with 'Those shall be the orders of the Court.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under section 361 of the Criminal Procedure Code, a second appeal to this Court is restricted to matters of law only, and the Court cannot hear an appeal on a matter of fact.
this Court cannot hear an appeal against sentence except where the sentence has been enhanced by the High Court or the subordinate court had no power to pass the sentence that was imposed.
the authority of the Supreme Court in Francis Karioko Muruatetu vs Republic (supra) does not provide that the sentence is illegal, but gives the Court the discretion to impose a sentence that is less than the minimum provided in that section
In the circumstances we find no merit in this appeal. It is accordingly dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongony v Republic (Criminal Appeal 126 of 2015) [2021] KECA 81 (KLR)", Case Analysis (2021). Criminal Appeal (not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/81/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.