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Court of AppealPartially AllowedCriminal Appeal (not separately numbered in judgment)

Telewa v Republic (Criminal Appeal 85 of 2019) [2024] KECA 217 (KLR)

Court of Appeal of Kenya
29 February 2024
1,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal replaced a 76-year-old man's life sentence for defilement with 20 years, ruling mandatory life imprisonment is unconstitutional.

What this practically means

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Executive summary

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The appellant, Alisi Telewa, was convicted by the SRM's Court at Kakamega of defiling a seven-year-old girl and sentenced to life imprisonment under Section 8(2) of the Sexual Offences Act. The High Court dismissed his appeal against both conviction and sentence. Before the Court of Appeal, the appellant abandoned the appeal against conviction and pursued sentence only, advancing two grounds: that the life sentence was harsh and excessive given his age of 76 years, and that an indeterminate life sentence is unconstitutional because it affords no opportunity for reform or hope of release. The Court held that although Section 361 of the Criminal Procedure Code limits second appeals to matters of law and sentence severity is a matter of fact, a matter of law arose because the trial magistrate imposed life imprisonment without any reference to the appellant's mitigation, and the first appellate court misapprehended the facts - referring to a 12-year-old complainant and a 15-year sentence - thereby failing to properly address the appeal on sentence. Relying on its jurisprudence in Kevin Odhiambo, Joshua Gichuki Mwangi and Julius Kitsao Manyeso, the Court reaffirmed that mandatory minimum sentences in sexual offences are unconstitutional to the extent they inhibit sentencing discretion, and that indeterminate life sentences are unconstitutional. Declining to remit the matter to the High Court given the appellant's age and the nearly ten years already served, the Court set aside the life sentence and substituted a sentence of 20 years' imprisonment. The appeal succeeded to that extent only. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the trial court and first appellate court failed to exercise discretion in sentencing by ignoring the appellant's mitigation, including his age
  2. 2.Whether the indeterminate life sentence imposed under Section 8(2) of the Sexual Offences Act is unconstitutional
  3. 3.Whether this Court should remit the matter to the High Court or itself reconsider the sentence

Key legal issues

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01

Jurisdiction of the Court of Appeal on a second appeal against sentence

Holding

Severity of sentence is a matter of fact, but the Court may intervene where a matter of law arises, such as failure to consider mitigation or misapprehension of facts by the first appellate court

Reasoning

Section 361 of the Criminal Procedure Code confines second appeals to matters of law; sentence severity is factual. Here the first appellate court misapprehended the facts (stating the complainant was 12 and the sentence 15 years) and failed to address the appellant's mitigation, so the Court found a matter of law justifying intervention.

p. 2
02

Constitutionality of the mandatory life sentence under Section 8(2) of the Sexual Offences Act

Holding

The indeterminate life sentence imposed was unconstitutional because mandatory minimum sentences inhibit judicial discretion in sentencing

Reasoning

The Court relied on its prior jurisprudence, including Joshua Gichuki Mwangi and Julius Kitsao Manyeso, holding mandatory minimum sentences under the Sexual Offences Act and indeterminate life sentences unconstitutional. The trial magistrate imposed life imprisonment as a matter of course without any reference to mitigation, depriving the sentencing court of discretion.

p. 3
03

Whether to remit for resentencing or substitute sentence directly

Holding

The Court substituted the sentence itself rather than remitting, given the appellant's age and the delay

Reasoning

Although remittal would have been desirable, the appellant was 76 years old and the sentence had been in place for almost 10 years. Remitting would unduly delay finalisation of the appellate process, and the appellant had raised a pure point of law on the legality of the sentence appropriate for the Court to determine.

p. 3

Legal principles established

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  • Mandatory minimum sentences in sexual offences are unconstitutional to the extent that they inhibit the exercise of sentencing discretion by the trial court
  • An indeterminate life sentence is unconstitutional
  • A trial court must properly exercise its discretion in sentencing even where a mandatory statutory sentence applies, by taking note of the circumstances before it

Court orders

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  1. 1.The appellant's life sentence is set aside and substituted with a sentence of 20 years' imprisonment

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only); Rule 33 of the Court of Appeal Rules

Relief refused

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Appeal against conviction

The appellant abandoned the appeal against conviction when the appeal came up for hearing

p. 1

Implicit request for remission to the High Court

The Court found remittal would unduly delay finalisation given the appellant's age of 76 and the sentence being nearly 10 years old

p. 2

Costs

No costs order made 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.

Needless to state that mandatory minimum sentences in sexual offences are unconstitutional to the extent that they inhibit the exercise of discretion by the trial court.
p. 3Constitutionality of mandatory minimum sentences under the Sexual Offences Act
In addition, this Court in Julius Kitsao Manyeso v Republic (Criminal Appeal No 12 of 2021) [2023] KECA 827 (KLR), held that indeterminate life sentence is unconstitutional.
p. 3Indeterminate life sentences unconstitutional
we set aside the appellant's life sentence and substitute thereto to a sentence of 20 years' imprisonment. To this extent only does the appeal succeed. It is so ordered.
p. 3Final orders - sentence substituted
a trial court has a responsibility to properly exercise its discretion in sentencing, by taking note of the circumstances before it.
p. 3Duty to exercise sentencing discretion

Issues in the judgment

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minor

The first appellate court is recorded as having misapprehended the facts, stating the complainant was 12 years old and the sentence was 15 years' imprisonment, when the record shows a 7-year-old complainant and a life sentence

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, "Telewa v Republic (Criminal Appeal 85 of 2019) [2024] KECA 217 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/217/eng@2024-02-29

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