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Court of AppealDismissedCriminal Appeal (undated grounds of appeal; second appeal from Nyeri High Court Criminal Appeal)

Gathoni v Republic (Criminal Appeal 138 of 2018) [2025] KECA 2080 (KLR)

Court of Appeal of Kenya
28 November 2025
JLJ. LesiitALAli-AroniGOG.V. Odunga
2,503 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a 20-year defilement sentence on a second appeal because sentence severity is a question of fact, not law.

What this practically means

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Executive summary

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The appellant, Charles Kinyua Gathoni, was convicted by the Karatina Magistrate's Court of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment, the particulars being that he defiled a 12-year-old girl who had gone to his shop to buy airtime. The High Court upheld both conviction and sentence on 31st August 2017, precipitating this second appeal to the Court of Appeal at Nyeri. Before the Court of Appeal, the appellant withdrew his appeal against conviction and pressed only an appeal against sentence, seeking a review of the 20-year term and declarations that the mandatory minimum sentence had resulted in an unfair trial by failing to consider his mitigation, relying on Article 50(2)(p) of the Constitution. He urged that he had undergone rehabilitation, was a first offender, and was his family's breadwinner. The respondent, citing the Supreme Court's decision in Republic v Joshua Gichuki Mwangi & 4 Others [2024] KESC 34 (KLR), maintained that the sentence was lawful, proportionate and neither punitive nor excessive. The Court of Appeal, comprising Lesiit, Ali-Aroni and Odunga JJ.A, reminded itself that on a second appeal its jurisdiction is confined to matters of law under section 361(1) of the Criminal Procedure Code, which provides that severity of sentence is a matter of fact and may not be questioned unless the sentence was enhanced by the High Court or the subordinate court lacked power to impose it. Adopting the Supreme Court's guidance in Joshua Gichuki Mwangi, the court held that a complaint that a sentence was harsh and excessive falls outside its jurisdiction on a second appeal. Accordingly, the appeal was dismissed on 28th November 2025. No separate costs order appears in the judgment. The judgment binds subordinate courts to the principle that severity of sentence is not a ground of second appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal, on a second appeal, can interfere with the severity of the sentence imposed by the trial court and upheld by the High Court, in light of section 361(1) of the Criminal Procedure Code

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal against sentence

Holding

The Court of Appeal on a second appeal is limited to matters of law under section 361(1) of the Criminal Procedure Code; severity of sentence is a matter of fact and cannot be questioned unless the sentence was enhanced by the High Court or the subordinate court lacked power to pass it.

Reasoning

The court invoked section 361(1) of the Criminal Procedure Code, which permits appeal against a High Court appellate decision only on a matter of law and expressly bars interference on matters of fact, including severity of sentence, except where a sentence has been enhanced or the subordinate court had no power to pass it. The court reinforced this with the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, which confirmed that omissions or commissions by the lower courts may be treated as matters of law, but a complaint that a sentence was harsh and excessive falls outside the Court of Appeal's jurisdiction on a second appeal. The appellant's complaint was purely as to severity, so the appeal could not succeed.

p. 4

Legal principles established

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  • On a second appeal to the Court of Appeal, the jurisdiction is confined to matters of law only, and the Court cannot interfere with the severity of a sentence imposed by the trial court and upheld by the High Court, since severity of sentence is a matter of fact.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JL
majority
AL
majority
GO
majority
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Review/reduction of the 20-year sentence imposed for defilement, including declarations that the mandatory minimum sentencing resulted in an unfair trial and that mitigating circumstances were not considered

On a second appeal the court is restricted to matters of law and cannot question the severity of a sentence; severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code

p. 5

The appellant's appeal against conviction was withdrawn and therefore not determined

The appellant sought to withdraw the appeal on conviction and proceed only on sentence; the court did not review the respondent's submissions on conviction

p. 4

Costs

No costs order is made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having duly considered the record, the appellant’s grounds of appeal and the rival submissions, we start by reminding ourselves that this being a second appeal, the court is restricted to addressing itself to matters of law only as provided in section 361(1) of the Criminal Procedure Code.
p. 4Scope of second appeal - matters of law only
Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole.
p. 5Supreme Court guidance (as quoted) on second appeals
Consequently, the Respondent's appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction.
p. 5Severity of sentence outside second-appeal jurisdiction
As things stand now, this Court cannot venture into questioning the severity of the sentence meted out by the trial court. The appeal is therefore dismissed.
p. 5Final orders - appeal on sentence dismissed

Issues in the judgment

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minor

The judgment records the High Court appeal decision date (31st August 2017) and the trial court conviction date (18th May 2015), but does not give the case numbers of either the trial court or the High Court appeal, nor the names of the High Court judges.

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, "Gathoni v Republic (Criminal Appeal 138 of 2018) [2025] KECA 2080 (KLR)", Case Analysis (2025). Criminal Appeal (undated grounds of appeal; second appeal from Nyeri High Court Criminal Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2080/eng@2025-11-28

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