Nyongesa v Republic (Criminal Appeal E035 of 2020) [2025] KECA 150 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, ruling you cannot challenge a sentence on a second appeal unless you raised the issue in your first appeal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal on second appeal against sentence
The Court lacked jurisdiction to disturb the sentence. Section 361(1)(b) of the Criminal Procedure Code bars entertaining an appeal against sentence on second appeal unless the trial court lacked jurisdiction or the sentence was enhanced on first appeal, and neither occurred here.
The Court invoked section 361(1)(b) of the Criminal Procedure Code, noting that sentencing is an exercise of judicial discretion by the trial court and an appellate court must not substitute its own views absent concrete grounds. It restated the Supreme Court's guidance in Republic vs. Mwangi (ISLA, Amicus Curiae) that the Court of Appeal's jurisdiction on second appeals is confined to matters of law, and that a complaint that a sentence was harsh and excessive falls outside that purview.
Failure to raise the constitutionality of minimum sentences before the first appellate court
The constitutional challenge to the mandatory minimum sentence was not preserved. The appellant's first appeal, though nominally against conviction and sentence, raised no grounds against the sentence, so the issue cannot be entertained on second appeal.
Although the appellant argued before the Court of Appeal that the mandatory sentence violated his constitutional rights, the Court found that no grounds against the sentence had been raised in the High Court appeal. Relying on Alfayo Gombe Okello vs. Republic and its own decisions in Nyaranga & 5 Others and PW vs. Republic, it held that an issue not raised at the earliest opportunity cannot be raised for the first time in a second appeal, and that addressing it would deprive the Court of the High Court's opinion.
Validity of the statutory minimum sentence under Section 8(3) of the Sexual Offences Act
The twenty-year sentence was lawful, being the mandatory minimum prescribed by Section 8(3) of the Sexual Offences Act for a child aged between twelve and fifteen years, which remains valid absent a declaration of unconstitutionality.
The Court quoted the Supreme Court's decision in Republic vs. Joshua Gichuki Mwangi reiterating that although sentencing is a judicial discretion, it is Parliament that sets the parameters of sentencing in statute; a statutory sentence remains lawful unless declared unconstitutional on sound principles and clear guidelines. Applying that to the facts, the victim was aged 12 and the sentence of twenty years was the lawful minimum.
Legal principles established
#- On a second appeal, section 361(1)(b) of the Criminal Procedure Code bars the Court of Appeal from entertaining an appeal against sentence unless the subordinate court had no jurisdiction to pass the sentence or the sentence was enhanced by the first appellate court.
- An appellate court will not interfere with a sentence imposed by the trial court unless it is demonstrated that the trial court acted on wrong principles or overlooked material facts.
- A constitutional challenge to a mandatory minimum sentence must be raised at the earliest opportunity, including before the first appellate court; an issue not raised there cannot be argued for the first time on a second appeal.
- Sentencing parameters are set by Parliament; a statutory sentence remains lawful unless and until it is declared unconstitutional on sound principles and clear guidelines.
Court orders
#- 1.The appeal against sentence is dismissed
- On appeal from
- High Court at Bungoma
- Jurisdiction invoked
- Second appeal against sentence under section 361(1)(b) of the Criminal Procedure Code, which bars appellate interference with sentence unless the subordinate court had no jurisdiction or the sentence was enhanced on first appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Republic (Criminal Appeal E035 of 2020) [2025] KECA 150 (KLR)", Case Analysis (2025). Criminal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/150/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.