Nduta v Republic (Criminal Appeal E145 of 2023) [2025] KECA 1157 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a statutory minimum defilement sentence on a second appeal, so the appellant's 20-year term stands.
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 Court of Appeal, on a second appeal, can interfere with a mandatory minimum sentence imposed under the Sexual Offences Act where the High Court did not enhance the sentence and the trial court had jurisdiction.
- 2.Whether the appellant's argument, raised for the first time on second appeal by way of submissions, that the mandatory sentence is unconstitutional or not binding is available for consideration.
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal against sentence
Section 361(1) CPC bars the court from entertaining severity of sentence, which is a matter of fact; interference is confined to cases where the High Court enhanced the sentence or the trial court lacked jurisdiction to pass it.
The court reproduced section 361(1) CPC and applied it to the facts: the High Court did not enhance the 20-year sentence, and the appellant did not contend that the trial magistrate exceeded jurisdiction. Neither exception to the statutory bar was engaged, so the second appeal against sentence could not succeed. The Supreme Court's guidance in Republic v Mwangi (ISLA) reinforced this limitation.
Whether the Court of Appeal is bound by mandatory minimum sentences under the Sexual Offences Act
Yes. Parliament, not the Judiciary, sets sentencing parameters in statute; a statutory sentence binds the court unless declared unconstitutional, and no such declaration was sought or made here.
The court adopted the Supreme Court's holding in Republic v Mwangi; ISLA & 3 Others (Amicus Curiae), stating the dictum binds it. The appellant's contention that the court is not bound by minimum sentences in the Sexual Offences Act therefore failed. The court also declined to entertain the argument because it was raised for the first time on second appeal and was never raised before the High Court.
Legal principles established
#- On a second appeal, the Court of Appeal cannot hear an appeal on a matter of fact, and severity of sentence is a matter of fact; it may interfere with sentence only where the High Court enhanced the sentence or the subordinate court had no power to pass it.
- Although sentencing is a judicial discretion, it is Parliament that sets the parameters of sentencing in statute; a statutory sentence cannot be disturbed unless declared unconstitutional on sound principles and clear guidelines.
- A constitutional challenge to a sentence raised for the first time on second appeal, by way of submissions only, is not available for consideration by the Court of Appeal.
Court orders
#- 1.The appeal is dismissed.
- 2.The sentence of 20 years' imprisonment imposed by the trial court and affirmed by the High Court stands.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code - second appeal on matters of law only
Relief refused
#Reduction of the 20-year sentence or remission to the trial court for resentencing
Section 361(1) CPC bars the court from entertaining severity of sentence on second appeal; the argument that mandatory minimum sentences do not bind the court was raised for the first time on appeal and the Supreme Court's holding in Republic v Mwangi (ISLA) binds the court to statutory sentences absent a declaration of unconstitutionality.
Costs
No costs order was 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.
It is only where the trial court had no jurisdiction to pass the sentence or where the High Court enhanced the sentence that this court can step in and make the necessary correction.
where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines
The appeal is therefore dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduta v Republic (Criminal Appeal E145 of 2023) [2025] KECA 1157 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1157/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.