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Court of AppealPartially AllowedCriminal Appeal (not otherwise numbered in judgment)· [2025] KECA 205 (KLR)

Abel Jomo Mikokho v Republic

Court of Appeal of Kenya
7 February 2025
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
1,464 words in judgment
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The bottom line

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Kenya's Court of Appeal cut years off a 20-year defilement sentence by counting time already spent in custody, but refused to touch the mandatory minimum itself.

What this practically means

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Executive summary

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The appellant, Abel Jomo Mikokho, was convicted by the Chief Magistrate's Court in Kakamega of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, the victim being a 14-year-old girl, and sentenced to 20 years imprisonment. The High Court (R.N. Sitati, J.) upheld both conviction and sentence. Before the Court of Appeal at Kisumu, the appellant pursued his appeal against sentence only, contending that the mandatory minimum sentence was unconstitutional, that Section 333(2) of the Criminal Procedure Code was not invoked, and that his mitigation was ignored. The Court, composed of Okwengu, Omondi and Ngugi, JJA in a single joint judgment, held that as a second appeal it was restricted by section 361(1) of the Criminal Procedure Code to matters of law and could not entertain an appeal against sentence unless the sentence had been enhanced by the High Court or the trial court lacked power to impose it. The Court further held that the constitutional challenge was a new ground raised for the first time at second appellate stage, having never been raised before the High Court, and was therefore precluded, applying the Supreme Court's decision in Republic v Mwangi (ISLA) and PW v Republic. The sentence was found lawful and remained undisturbed. However, on the uncontested point, the Court held that under section 333(2) of the CPC the appellant was entitled to credit for time spent in custody awaiting trial, and directed that computation of the sentence begin on 7th April 2014, the date he first appeared in court. The appeal was accordingly dismissed.

Key legal issues

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01

Scope of second-appeal jurisdiction over sentence

Holding

Severity of sentence is a matter of fact; the Court of Appeal on a second appeal cannot interfere with sentence save within the exceptions in section 361(1)(b) of the CPC, none of which applied.

Reasoning

Section 361(1)(a) restricts second appeals to matters of law, and section 361(1)(b) bars appeals against sentence unless the sentence was enhanced by the High Court or the trial court lacked power to impose it. The 20-year term was the lawful minimum under section 8(3) of the Sexual Offences Act, so the complaint of harshness fell outside the Court's jurisdiction.

p. 2
02

Raising a constitutional challenge to a mandatory sentence for the first time on second appeal

Holding

An appellant is precluded from raising a new ground, including unconstitutionality of the sentence, at second appellate stage if it was not raised before the High Court.

Reasoning

A perusal of the grounds of appeal before the High Court showed no challenge to the sentence or its constitutionality. Following PW v Republic and the Supreme Court in Republic v Mwangi (ISLA), the issue having not been raised before the first appellate court cannot fall for determination in this appeal.

p. 3
03

Credit for time spent in custody under section 333(2) CPC

Holding

The appellant is entitled to have the period spent in custody while awaiting trial considered in computing his sentence; computation begins from his first court appearance on 7th April 2014.

Reasoning

The respondent conceded that the period in custody should be considered. The Court held that under section 333(2) of the Criminal Procedure Code the appellant is entitled to that credit, and directed that computation of the sentence run from 7th April 2014, the date he first appeared in court, while otherwise leaving the sentence undisturbed.

p. 3

Legal principles established

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  • A new ground, including a constitutional challenge to a sentence, cannot be raised for the first time on a second appeal where it was not raised or determined by the first appellate court.
  • An accused is entitled, under section 333(2) of the Criminal Procedure Code, to have the period spent in custody before sentencing taken into account in computing sentence.
  • On a second appeal the Court of Appeal is confined to matters of law and may not hear an appeal against sentence except where the sentence was enhanced by the High Court or the trial court had no power to pass it.

Court orders

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  1. 1.The sentence imposed on the appellant shall remain undisturbed
  2. 2.Computation of the sentence shall begin 7th April 2014, the date the appellant first appeared in court, per section 333(2) of the Criminal Procedure Code
  3. 3.The appeal is dismissed
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 361(1)(a) and (b) 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, "Abel Jomo Mikokho v Republic", Case Analysis (2025). Criminal Appeal (not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/205/eng@2025-02-07

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