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Court of AppealPartially AllowedCriminal Appeal No. E021 of 2021 (implied from memorandum of appeal dated April 27, 2018; number not expressly stated in the judgment)

Onsongo v Republic (Criminal Appeal 157 of 2018) [2023] KECA 625 (KLR)

Court of Appeal of Kenya
26 May 2023
1,346 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a defilement sentence from 20 to 15 years, confirming judges can reduce the Sexual Offences Act's minimum sentences.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Eldoret by Levy Onsongo against his conviction and 20-year sentence for defilement of a 12-year-old girl contrary to Section 8(1)(3) of the Sexual Offences Act. He had been convicted by the Senior Resident Magistrate's Court at Kitale on April 13, 2017, and the High Court (Chemitei, J) dismissed his first appeal in its entirety on April 11, 2018, upholding both conviction and sentence. At the plenary hearing on February 13, 2023, the appellant abandoned his appeal on conviction, leaving only the sentence for determination. The Court, confined by section 361(1)(a) of the Criminal Procedure Code to matters of law on a second appeal, declined to evaluate the trial evidence. It rejected the appellant's claim that he was 17 years old and a student at the time of the offence, noting that no age assessment was ever ordered by either court below, the contention was unsupported by evidence, was not raised below, and was contradicted by his own defence that he was a boda boda rider. Turning to sentence, the Court adopted its recent jurisprudence, notably Dismas Wafula Kilwake v Republic, that minimum sentences under Section 8 of the Sexual Offences Act fetter judicial discretion and are to a large extent an affront on the doctrine of separation of powers. Finding the circumstances of the offence not aggravated, the Court exercised its discretion and substituted the 20-year sentence with 15 years' imprisonment to run from the date of sentencing in the trial court. The appeal succeeded only to that extent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant, having abandoned his appeal on conviction, had shown grounds to interfere with the sentence of 20 years' imprisonment
  2. 2.Whether the appellant's claim that he was 17 years old and a student at the time of the offence was supported by the record
  3. 3.Whether the minimum sentence under Section 8 of the Sexual Offences Act fetters judicial discretion in sentencing

Key legal issues

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01

Scope of the Court's mandate on a second appeal

Holding

By dint of section 361(1)(a) of the Criminal Procedure Code, the Court considers only matters of law and steers clear of issues of fact.

Reasoning

The Court restated the established limitation on second appeals: it does not re-evaluate evidence or disturb concurrent factual findings unless they are based on no evidence, a misapprehension of evidence, or wrong principles. Since the appellant abandoned the conviction appeal, no factual evaluation was required.

p. 2
02

Claim of minority (17 years) and student status at the time of the offence

Holding

The claim failed: no age assessment was ordered by either court below, the contention was unsupported by evidence, was not raised below, and was contradicted by the appellant's own defence that he was a boda boda rider.

Reasoning

The Court examined the record and found no order for age assessment by the trial court or the High Court. The claim of being a student was internally inconsistent with the appellant's own statement in his defence that he was a boda boda rider, undermining his credibility on the point.

p. 3
03

Mandatory/minimum sentences under Section 8 of the Sexual Offences Act and judicial discretion

Holding

The minimum sentence of 20 years under Section 8(1)(3) fetters judicial discretion and the Court, exercising its own discretion on the facts (which it found not aggravated), reduced the sentence to 15 years.

Reasoning

Adopting the Kilwake jurisprudence, the Court held that Section 8's minimum sentences interfere with sentencing discretion and are to a large extent an affront on the separation of powers. Considering the circumstances of the offence, which it did not consider aggravated, it exercised its discretion to substitute 15 years for the 20-year minimum.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles.
  • The minimum sentences under Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing; the prescribed sentences are indicative, not mandatory, and courts may depart from them where the circumstances so demand.
  • Imposition of sentence is at the discretion of the trial court, which discretion must be exercised judiciously depending on the facts and circumstances of each case.

Court orders

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  1. 1.The sentence of 20 years' imprisonment imposed on the appellant is substituted with a sentence of 15 years' imprisonment to run from the date of sentencing in the trial court
  2. 2.The appeal succeeds only to the extent of the reduction in sentence

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
not stated in the judgment
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code, confining the Court to matters of law

Relief refused

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Appeal against conviction (abandoned by the appellant at the hearing)

The appellant expressly abandoned the appeal on conviction, leaving only sentence for determination

p. 2

Claim that the appellant was 17 years old and a student at the time of the offence

No evidence supported the claim of minority; neither court below ordered an age assessment; and the claim of being a student contradicted his own defence that he was a boda boda rider

p. 3

Costs

No order as to costs is recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we are inclined to exercise our discretion in favour of the appellant to reduce the sentence which we hereby do and substitute the sentence of 20 years’ imprisonment meted out on the appellant with a sentence of 15 years’ imprisonment to run from the date of sentencing in the trial court.
p. 3Final orders - substitution of sentence
The appellant’s appeal only succeeds to that extent. It is so ordered.
p. 3Disposition - extent of success
Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand.
p. 3Sentencing discretion under Section 8 of the Sexual Offences Act
the jurisprudence that has been emerging from this Court recently is that the imposition of minimum sentences under Section 8 of the Sexual Offences Act interferes/fetters the discretion of the Court in sentencing and imposing an alternative sentencing in an appropriate case and is to a large extent an affront on the doctrine of separation of powers.
p. 3Minimum sentences and separation of powers

Issues in the judgment

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minor

The appeal file number of this second appeal is not expressly stated anywhere in the judgment text provided; only the memorandum of appeal date (April 27, 2018) appears.

minor

The judgment cites the offence as contrary to 'Section 8 (1) (3)' of the Sexual Offences Act, an unusual formatting of the provision (normally Section 8(1) as read with Section 8(3)); the intended provision is clear from context but the citation is non-standard.

minor

The appellant's stated age claim conflicts within the judgment itself: he claimed to be 17 years old and a student at the time of the offence, but the Court notes his own defence was that he was a boda boda rider.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Onsongo v Republic (Criminal Appeal 157 of 2018) [2023] KECA 625 (KLR)", Case Analysis (2023). Criminal Appeal No. E021 of 2021 (implied from memorandum of appeal dated April 27, 2018; number not expressly stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/625/eng@2023-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.