DMM v Republic (Criminal Appeal 103 of 2019) [2025] KECA 1525 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that life imprisonment for incest with a minor remains mandatory, and stepfathers count as fathers under the Sexual Offences Act.
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 sentence of life imprisonment imposed under the proviso to Section 20(1) of the Sexual Offences Act was justified, the appeal on conviction having been conceded
Key legal issues
#Whether the life sentence under the proviso to Section 20(1) of the Sexual Offences Act is a lawful mandatory minimum that ousts judicial discretion in sentencing
The trial court and first appellate court acted lawfully; the proviso prescribes imprisonment for life where the victim is under eighteen, and the Supreme Court has held such minimum mandatory sentences lawful pending proper escalation
The appellant argued that Section 20(1) creates no mandatory minimum and that a mandatory life term violates the right to dignity by excluding mitigation. The Court reproduced Section 20(1) and held the trial court could not be faulted. It deferred to the Supreme Court's decision in Republic v Mwangi (ISLA) that the minimum mandatory sentences remain lawful, and noted severity of sentence is a question of fact outside a second appeal under section 361(2) of the Criminal Procedure Code.
Whether the appellant qualified as PW1's 'father' for purposes of the incest charge
Yes; under Section 22(1) of the Sexual Offences Act the relationship test extends to a mother's husband whether through lawful wedlock or not
Section 22(1) defines the relationship test for incest, providing that a mother includes a half-mother and aunt of the first degree whether through lawful wedlock or not. PW2 testified she married the appellant in 2006 when PW1 was about three years old, making the appellant the step-father and within the statutory definition of father for the offence of incest.
Legal principles established
#- On a second appeal, the Court of Appeal's mandate is confined to matters of law and severity of sentence is a question of fact outside its remit
- Minimum mandatory sentences under the Sexual Offences Act remain lawful until determined otherwise by the Supreme Court when a matter is properly escalated to that Court
- For incest, a father includes a person married to the child's mother, whether through lawful wedlock or not, by virtue of Section 22(1) of the Sexual Offences Act
Court orders
#- 1.Appeal against sentence dismissed
- 2.Conviction and sentence of life imprisonment upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Set-aside or review of the mandatory life imprisonment sentence
The proviso to Section 20(1) of the Sexual Offences Act prescribes life imprisonment where the victim is under eighteen, and the minimum mandatory sentences remain lawful per the Supreme Court
Costs
No costs order recorded 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.
In the circumstances, we find that this appeal against sentence is devoid of merit and we dismiss it.
This being a second appeal, our mandate is confined to matters of law under Section 361 of the Criminal Procedure Code.
the minimum mandatory sentences under the Sexual Offences Act remain lawful until determined otherwise by the Supreme Court when the matter is properly escalated to that Court
Issues in the judgment
#The judgment contains no case number or neutral citation for this appeal and records no costs order in its final paragraphs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DMM v Republic (Criminal Appeal 103 of 2019) [2025] KECA 1525 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered in text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1525/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.