Yegon v Republic (Criminal Appeal E015 of 2022) [2025] KECA 857 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a judge's decision to increase a man's sentence from 10 to 15 years because he was never warned it might happen.
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 High Court could, suo motu and without notice or caution to the appellant, enhance the sentence from 10 to 15 years
- 2.Whether this Court, a second appellate court, has jurisdiction over the sentence given the bar in section 361(1) of the Criminal Procedure Code on matters of fact
Key legal issues
#Jurisdiction of the Court of Appeal over an enhanced sentence
The bar in section 361(1) of the Criminal Procedure Code on hearing matters of fact, including severity of sentence, does not apply where the sentence has been enhanced by the High Court; the Court of Appeal may then interrogate the enhanced sentence.
Section 361(1) bars second appellate courts from determining questions of fact, including the severity of sentence, but the Supreme Court in Republic v Mwangi clarified an exception: the bar does not apply to a sentence that the High Court has itself enhanced. Since the appellant's sentence was enhanced from 10 to 15 years by Ongeri, J, this Court had jurisdiction to review the enhancement notwithstanding that severity of sentence is ordinarily a matter of fact.
Duty to warn before suo motu enhancement of sentence
A High Court must warn an appellant before enhancing a sentence; enhancement without notice, without a prosecution cross-appeal seeking enhancement, and without hearing the appellant is an error of law that invalidates the enhanced sentence.
The Court relied on its prior decisions holding that although warning is not strictly a statutory requirement, it is standard practice of notoriety that puts the appellant on notice of the risk of enhancement, ordinarily conveyed by a prosecution cross-appeal served in good time or by a judicial warning. On the record there was no indication the Judge was addressed on enhancement and the appellant, who was prejudiced, was never afforded an opportunity to be heard, breaching the fair-hearing principle.
Legal principles established
#- Where a High Court hearing a first appeal enhances a sentence in the absence of an appeal against sentence or a cross-appeal by the prosecution seeking enhancement, it must first warn or caution the appellant; enhancement without such notice is improper and will be set aside.
- The Court of Appeal has jurisdiction to interrogate a sentence where the same has been enhanced by the High Court, notwithstanding the general bar in section 361(1) of the Criminal Procedure Code on matters of fact.
Court orders
#- 1.The 15-year sentence imposed by the High Court is set aside
- 2.The 10-year sentence imposed by the trial court is reinstated
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 of Kenya at Kericho
- Criminal Appeal No. 35 of 2019
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code, which permits the Court of Appeal to interrogate a sentence that has been enhanced by the High Court, and section 354(3) on enhancement powers
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.
In view of the foregoing, find that the learned Judge erred in, suo moto, enhancing the sentence imposed on the appellant by the trial court. Consequently, we set aside the 15 years sentence imposed upon the appellant by the High Court and reinstate the sentence of 10 years imposed by the trial court.
We therefore have the jurisdiction to interrogate the sentence where the same has been enhanced by the High Court.
in the absence of an appeal against sentence, the court must warn the appellant before it enhances the sentence
the practice of warning the appellant before enhancing the sentence was not a requirement of law, it was a matter of practice that had gained notoriety and served to put the appellant on notice of the consequences that would befall him depending on the outcome of the appeal
The State did not ask for enhancement of the sentence, but like a thunderbolt from the sky, the appellant was hit by an order which did not only dismiss his appeal but handed him a death sentence.
Issues in the judgment
#The judgment does not bear a case number of its own; it is identified only by the parties and the underlying Kericho Criminal Appeal No. 35 of 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yegon v Republic (Criminal Appeal E015 of 2022) [2025] KECA 857 (KLR)", Case Analysis (2025). Criminal Appeal (not otherwise numbered in judgment; arising from Kericho Criminal Appeal No. 35 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/857/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.