Nchoe v Repulic
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a life sentence for robbery with violence unless the High Court increased it or the trial court lacked power to impose it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal could entertain the appeal against sentence
It could not; the appeal was barred by section 361(1)(b) of the Criminal Procedure Code because the life sentence was a reduction of the death sentence by the first appellate court, not an enhancement, and the trial court had jurisdiction to impose the sentence.
Section 361(1) confines second appeals to matters of law, and severity of sentence is a matter of fact. Section 361(1)(b) permits sentence appeals only where the sentence was enhanced by the High Court or the subordinate court lacked power to pass it. Here the death sentence was reduced to life imprisonment, so neither exception applies. The Supreme Court in Republic v Mwangi (ISLA) recently restated this position.
Whether courts may depart from the mandatory death/life sentence for robbery with violence
No. The Supreme Court has only permitted non-death sentences for murder; for other offences carrying a prima facie mandatory death sentence, courts must impose the sentence until a proper case on constitutional validity is filed and escalated through the appropriate channels.
The Court held itself bound by the Supreme Court's decision in Republic v Mwangi (ISLA), which reiterated that the Muruatetu direction - that a proper case on the constitutional validity of minimum or mandatory sentences other than murder must be filed, presented, fully argued before the High Court and escalated - remains binding on all courts below. As unpalatable as the circumstances may seem, the Court of Appeal must therefore follow the binding opinion.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law, and severity of sentence is a matter of fact on which the Court cannot entertain an appeal.
- An appeal does not lie to the Court of Appeal against a sentence reduced by the High Court on first appeal; the bar applies unless the sentence was enhanced or the subordinate court lacked power to impose it.
- Until the Supreme Court determines the constitutional validity of mandatory or minimum sentences for offences other than murder on a properly presented and argued case, courts below must impose those sentences for robbery with violence.
Court orders
#- 1.The appeal is dismissed
- 2.The judgment of the High Court at Narok delivered on 25th September 2019 (substituting the death sentence with life imprisonment) is affirmed
- On appeal from
- High Court at Narok
- Narok High Court Criminal Appeal No. 119 of 2017
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nchoe v Repulic", Case Analysis (2025). Criminal Appeal (Nakuru) No. 119 of 2017 (High Court); second appeal against Narok High Court Criminal Appeal No. 119 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1211/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.