JON v Republic (Criminal Appeal 267 of 2018) [2025] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a mandatory life sentence for defilement, ruling you cannot challenge a sentence's constitutionality for the first time on second appeal.
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 mandatory sentence of life imprisonment under section 8(2) of the Sexual Offences Act was illegal or unconstitutional
- 2.Whether the Court of Appeal, on second appeal, can entertain a challenge to the constitutionality of a sentence not raised in the trial court or the High Court
- 3.Whether the Court should interfere with the sentence imposed by the trial court
Key legal issues
#Legality of the mandatory life sentence under section 8(2) of the Sexual Offences Act
Following Republic v Mwangi, mandatory sentences under the Sexual Offences Act are lawful; the trial court had no option but to impose the prescribed sentence.
The Court noted that the High Court in Maingi and the Court of Appeal in Joshua Gichuki Mwangi had declared mandatory sentences unconstitutional, but that position was reversed by the Supreme Court in Republic v Mwangi, which held mandatory sentences lawful and distinguished minimum sentences. The appellant's sentence was imposed in accordance with the statute.
Raising unconstitutionality of sentence for the first time on second appeal
The issue is not preserved and cannot be entertained where it was not raised in the trial court or the High Court.
An examination of the record showed the appellant never raised the constitutional challenge in either lower court, leaving no High Court finding to anchor the appeal. The Court applied the Supreme Court's reasoning in Republic v Mwangi, where a similar attempt to raise the issue on appeal was precluded.
Legal principles established
#- A challenge to the constitutionality of a sentence cannot be raised for the first time on second appeal where it was not raised in the trial court or the High Court.
- Following the Supreme Court's decision in Republic v Mwangi, mandatory sentences under the Sexual Offences Act are lawful; where a statute provides a mandatory sentence the trial court has no discretion.
- On a second appeal under section 361 of the Criminal Procedure Code, the Court is confined to matters of law and must accept the concurrent findings of fact of the lower courts.
Court orders
#- 1.The appeal against sentence is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#A declaration that the mandatory life sentence under section 8(2) of the Sexual Offences Act is unconstitutional and substitution of a determinate sentence
The constitutionality issue was raised for the first time on second appeal and was not preserved, and no basis was laid to interfere with the sentence
Costs
No costs order made in the judgment
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.
The upshot of the above is that the appellant has failed to established any grounds upon which the Court can interfere with his sentence. His appeal therefore lacks merit and is accordingly dismissed.
Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law.
The issue was not, therefore preserved for our consideration and cannot be raised at this stage, as there is no finding by the High Court upon which it can be anchored.
Issues in the judgment
#Case number of this appeal is not stated in the judgment
Block quotation of the Supreme Court's decision in Republic v Mwangi lacks a closing quotation mark, and the concession of unconstitutionality by the respondent sits uneasily with the outcome (the concession was not acted upon)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JON v Republic (Criminal Appeal 267 of 2018) [2025] KECA 8 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/8/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.