Amare v Republic (Criminal Appeal 295 of 2019) [2025] KECA 17 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a guilty plea to defilement means a mandatory life imprisonment sentence stands, and constitutional challenges must be raised early.
What this practically means
#Executive summary
#Key legal issues
#Legality of the mandatory life sentence under section 8(2) of the Sexual Offences Act
The mandatory life sentence is lawful; the trial court had no discretion but to impose it, following the Supreme Court's decision in Republic v. Mwangi (ISLA)
The Court acknowledged that prior decisions, including Joshua Gichuki Mwangi, had declared mandatory sentences under the Sexual Offences Act unconstitutional following Muruatetu. However, the Supreme Court in Republic v. Mwangi reversed that approach and declared mandatory sentences under the Act lawful. The life sentence imposed was therefore the mandatory maximum under section 8(2), leaving the trial court no option.
Whether the constitutional challenge to the sentence was properly preserved for appellate consideration
No - the issue was not raised in the High Court and therefore was not preserved; there was no finding by the High Court upon which it could be anchored
The Court noted that although the appellant argued the life sentence was unconstitutional, the record showed the issue was not raised before the High Court. Without a first-instance finding on constitutionality, the second appellate court had no basis to interrogate it. The appellant therefore failed to lay any foundation for the constitutional challenge.
Proper procedure for recording a guilty plea, including treatment of the alternative charge
Reading out and taking a plea on the alternative charge after the accused admits the main charge is a procedural error, but it is not a reversible error warranting nullity or retrial
The Court observed, as obiter, that the appellant pleaded guilty to both the main and alternative charges, which was procedurally flawed since the alternative charge only arises if the main charge is denied. The court also failed to record which offence the conviction related to. However, the facts narrated clearly established defilement, so the error did not result in a reversible error. This was obiter and not the subject of the appeal.
Whether a person who pleaded guilty can challenge conviction on second appeal
A guilty plea precludes challenge to the conviction under section 348 of the Criminal Procedure Code; the appeal was on sentence only
The High Court had found that the appellant pleaded guilty and was precluded by section 348 of the Criminal Procedure Code from challenging the conviction. Before the Court of Appeal, the appeal was confined to sentence, which under section 361(1) of the Criminal Procedure Code is a matter of fact, so only a question of law regarding sentence could engage the second appellate court.
Legal principles established
#- An appellate court will not interfere with sentence unless it is demonstrated that the trial court acted on wrong principles, overlooked material facts, or that the sentence is manifestly excessive
- Where a statute prescribes a mandatory sentence, the trial court has no discretion but to impose it; mandatory sentences remain lawful following Republic v. Mwangi (ISLA)
- A second appeal is confined to points of law and the Court will not interfere with concurrent findings of the two courts below unless based on no evidence
Court orders
#- 1.Appeal against sentence dismissed in its entirety
- On appeal from
- High Court at Kisii
- Jurisdiction invoked
- Second appeal on matters of law under section 361(1) of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amare v Republic (Criminal Appeal 295 of 2019) [2025] KECA 17 (KLR)", Case Analysis (2025). Criminal Appeal (sentence only) - Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/17/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.