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Court of AppealPartially AllowedCriminal Appeal 144 of 2018

Odhiambo v Republic (Criminal Appeal 144 of 2018) (25 January 2024) (Reasons) [2024] KECA 48 (KLR)

Court of Appeal of Kenya
25 January 2024
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck down the mandatory 20-year minimum sentence for defilement as unconstitutional and reduced an appellant's sentence to 10 years.

What this practically means

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Executive summary

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This judgment supplies the reasons for a ruling delivered on September 25, 2023, in which the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJA) reduced the appellant's sentence for defilement from twenty years to ten years, resulting in his immediate release for time served. The appellant had been convicted by the Senior Resident Magistrate's Court at Rongo of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to the statutory minimum of twenty years; the High Court at Migori (Mrima, J.) dismissed his first appeal. Before the Court of Appeal, the appellant, acting in person, withdrew his appeal against conviction, leaving only the sentence appeal. Counsel for the respondent conceded that both lower courts, constrained by the statutory minimum, failed to consider the appellant's mitigation. Relying on the shift in jurisprudence since Muruatetu, and on High Court authorities (Maingi; Edwin Wachira) and its own decision in Joshua Gichuki Mwangi, the Court held that mandatory minimum sentences under the Sexual Offences Act are unconstitutional insofar as they deny sentencing courts discretion. It reasoned that the appeal was one of law, not merely of severity of sentence, and therefore within its jurisdiction under section 361(a) of the Criminal Procedure Code. Balancing the extenuating circumstances against the objective seriousness of the offence, the Court found ten years sufficient punishment. The decision binds subordinate courts and the High Court on sentencing discretion under the Act.

Questions the Court framed

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

  1. 1.Whether the appeal against conviction, which the appellant sought to withdraw at the plenary hearing, should be allowed to be withdrawn
  2. 2.Whether the mandatory minimum sentence of twenty years under section 8(3) of the Sexual Offences Act deprived the sentencing courts of discretion and was unconstitutional in light of the shift in jurisprudence since Muruatetu
  3. 3.Whether the appellant's mitigation was taken into account by the trial court and the High Court, and if not, whether that affected the sentence imposed
  4. 4.What sentence is appropriate in the specific circumstances of the case

Key legal issues

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Constitutionality of mandatory minimum sentences under the Sexual Offences Act

Holding

The mandatory minimum sentences under the Sexual Offences Act are unconstitutional to the extent that they deny the sentencing court discretion to impose an individualized sentence after considering mitigation and the circumstances of the offence, offender and victim.

Reasoning

Following the Supreme Court's reasoning in Muruatetu that mandatory sentences impermissibly breach the constitutional separation between the legislature and the Judiciary and take away the sentencing court's discretion, the Court noted High Court decisions (Maingi; Edwin Wachira) and its own decision in Joshua Gichuki Mwangi striking down mandatory minimum sentences under the Act. The trial court and High Court had imposed the twenty-year minimum before this shift, denying the appellant the benefit of his mitigation.

p. 3
02

Scope of second appellate jurisdiction over sentence

Holding

Although severity of sentence is a matter of fact outside section 361(a) of the Criminal Procedure Code, an appeal asserting that a mandatory minimum sentence was unconstitutionally imposed is an appeal on a matter of law and is properly entertainable.

Reasoning

The Court acknowledged that its remit as a second appellate court is confined to matters of law and that severity of sentence is defined as a matter of fact. However, the challenge here was not to the severity of the sentence but to the legality of its imposition under an unconstitutional mandatory provision, which gives the Court jurisdiction.

p. 3
03

Appropriate sentence on re-sentencing

Holding

Balancing the extenuating circumstances (the appellant's youth, absence of violence or predatory behaviour, remorse, orphanhood and family responsibilities) against the objective seriousness of defilement, ten years imprisonment was sufficient punishment.

Reasoning

The facts showed no force or violence: the youthful appellant befriended the complainant, intended to marry her, and she eloped with him, though as a minor she was legally incapable of consenting. In mitigation he cited his youth, ignorance of the law, orphanhood, care of his brother's children and remorse. The Court formed the opinion that ten years was sufficient punishment in the specific circumstances.

p. 3

Legal principles established

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  • Mandatory minimum sentences under the Sexual Offences Act are unconstitutional to the extent that they deprive the sentencing court of the opportunity to consider the aggravating and extenuating factors and the individual circumstances of each convicted person before pronouncing sentence.
  • Where a sentencing court was hamstrung by a statutorily mandated minimum sentence and failed to consider the offender's mitigation, a second appellate court may interfere with the sentence notwithstanding the ordinary limits of section 361(a) of the Criminal Procedure Code, because the appeal is one about the law rather than the severity of sentence.

Court orders

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  1. 1.The appellant's appeal against conviction was allowed to be withdrawn
  2. 2.The appellant's sentence of twenty (20) years imprisonment was reduced to ten (10) years imprisonment
  3. 3.The reduction in sentence took effect immediately, resulting in the appellant's release on September 25, 2023, owing to time already served

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 Migori
HCCRA No. 45 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence from the High Court exercising first appellate jurisdiction; jurisdiction over the sentence appeal founded on the shift in jurisprudence on mandatory minimum sentences, with the remit limited by section 361(a) of the Criminal Procedure Code to matters of law.

Relief refused

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Reversal of conviction

The appellant himself withdrew the appeal against conviction at the plenary hearing, leaving only the sentence appeal for determination

p. 2

Costs

No costs order 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.

we ordered that his sentence be reduced to ten (10) years imprisonment. We also ordered that the reduction in sentence takes efiect immediately meaning that the appellant was released from prison on that day owing to the time already served
p. 1Final orders - reduction of sentence and immediate release
the mandatory minimum sentences under the Sexual Offences Act is unconstitutional
p. 3Unconstitutionality of mandatory minimum sentences
mandatory sentences impermissibly breach the constitutional separation between the legislature and the Judiciary; and that providing for a mandatory sentence that took away the discretion of the sentencing court in imposing the appropriate sentence was unconstitutional
p. 2Muruatetu principle on mandatory sentences and separation of powers
whether the minimum sentence imposed was the only one possible as the two courts below concluded; whether the appellant’s mitigation was taken into account; and if not, whether that would afiect the sentence imposed
p. 3Framing of the sentence appeal as an issue of law
We have no doubt that if the trial court believed that it was clothed with discretion to impose an appropriate sentence it would have imposed the mandatory minimum sentence of twenty years imprisonment in these circumstances
p. 3Sentencing court deprived of discretion by statute

Issues in the judgment

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minor

The judgment states the High Court judgment was delivered on March 21, 2017, while the title of the appeal recites a High Court judgment dated May 21, 2017.

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, "Odhiambo v Republic (Criminal Appeal 144 of 2018)  (25 January 2024) (Reasons) [2024] KECA 48 (KLR)", Case Analysis (2024). Criminal Appeal 144 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/48/eng@2024-01-25

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