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Court of AppealAllowedCriminal Appeal (not stated in judgment)· [2024] KECA 216 (KLR)

Gerishon Alugaya v Republic

Court of Appeal of Kenya
29 February 2024
HOHannah OkwenguHOH.A. OmondiJNJoel Ngugi
993 words in judgment
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The bottom line

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Kenya's Court of Appeal struck down a life sentence for defilement as unconstitutional and freed an 84-year-old man based on time already served.

What this practically means

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Executive summary

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The appellant was convicted by the SRM's Court at Vihiga of defiling a seven-year-old girl and sentenced to life imprisonment under Section 8(2) of the Sexual Offences Act. His first appeal to the High Court against conviction and sentence was dismissed. In this second appeal, restricted by Section 361 of the Criminal Procedure Code to matters of law, the appellant challenged the sentence alone, contending that the mandatory minimum sentence regime and the indeterminate life sentence were unconstitutional in light of emerging jurisprudence. The respondent conceded the appeal, relying on the Court's decision in Julius Kitsau Manyeso v Republic, which declared indeterminate life imprisonment unconstitutional, and suggested a 30-year term given the appellant's age. The Court held that although severity of sentence is a matter of fact outside its second-appeal remit, questions of legality and constitutionality of sentence are matters of law justifying intervention. Noting that the trial magistrate had considered mitigating circumstances (first offender, aged 70) and the circumstances of the offence, the Court nonetheless found that the indeterminate life sentence could not be upheld. Balancing the tender age of the victim against the appellant's circumstances - about ten years already served, age 84, and eyesight problems - the Court set aside the life sentence, substituted it with a sentence equivalent to time already served, and ordered the appellant's immediate release unless otherwise lawfully held. The appeal against sentence was allowed. The judgment was delivered at Kakamega on 29 February 2024 by a unanimous bench of Okwengu, Omondi and Ngugi, JJ.A.

Key legal issues

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01

Jurisdiction of the second appellate court over sentence

Holding

Though severity of sentence is a matter of fact, legality and constitutionality of sentence are matters of law justifying intervention.

Reasoning

Section 361 of the Criminal Procedure Code restricts second appeals to matters of law, and severity of sentence is a matter of fact. However, where a question of law arises regarding sentence - such as its legality or constitutionality - the Court has jurisdiction to intervene. The appellant's challenge to the mandatory minimum sentence and to the indeterminate life sentence raised such legal issues.

p. 2
02

Constitutionality of the indeterminate life sentence

Holding

The indeterminate life imprisonment sentence imposed on the appellant could not be upheld.

Reasoning

Following Julius Kitsau Manyeso v Republic, the Court held that indeterminate life imprisonment is unconstitutional. Even though the trial magistrate considered mitigating circumstances and was not prejudiced by the mandatory nature of the sentence, the sentence imposed remained an indeterminate life sentence which could not stand in light of that precedent.

p. 2

Legal principles established

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  • Indeterminate life imprisonment is unconstitutional and cannot be upheld, following the Manyeso decision.
  • Mandatory minimum sentences in the Sexual Offences Act are unconstitutional because they deny trial courts sentencing discretion.

Court orders

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  1. 1.Set aside the sentence of life imprisonment imposed on the appellant
  2. 2.Substitute it with a sentence equivalent to the period already served
  3. 3.Appellant to be forthwith released from prison unless otherwise lawfully held
  4. 4.Appeal against sentence allowed
On appeal from
High Court
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

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, "Gerishon Alugaya v Republic", Case Analysis (2024). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/216/eng@2024-02-29

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