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Court of AppealDismissedCriminal Appeal (not separately numbered in judgment; arising from Criminal Case No. 168 of 2016, Chief Magistrate's Court at Kisii, and Criminal Appeal No. 79 of 2018, High Court at Kisii)

Kemunto v Republic (Criminal Appeal 027 of 2019) [2026] KECA 169 (KLR)

Court of Appeal of Kenya
30 January 2026
1,489 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cannot reduce a 30-year human trafficking sentence because the law only allows second appeals on legal errors, not on how harsh a sentence feels.

What this practically means

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Executive summary

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The appellant, Doris Kemunto, was convicted by the Chief Magistrate's Court at Kisii in Criminal Case No. 168 of 2016 of trafficking in person contrary to section 3(1)(b) as read with section 3(5) of the Counter Trafficking in Person Act, and sentenced to 30 years' imprisonment. Her co-accused was acquitted. Her first appeal to the High Court at Kisii (Criminal Appeal No. 79 of 2018) was dismissed by Ougo J. Before the Court of Appeal at Kisumu she challenged only the sentence, urging that the 30-year term was harsh and excessive and seeking a lesser or non-custodial sentence on grounds that she was a first offender, remorseful, a mother of three and her family's breadwinner. The respondent, through Mr. Solomon Njeru, opposed the appeal, contending that the sentence was the statutory minimum and neither unlawful nor excessive. The Court framed a single definitive issue: whether it had mandate to entertain a second appeal against sentence. Applying section 361(1) of the Criminal Procedure Code and the Supreme Court's decision in Republic v Mwangi (ISLA), the Court held that severity of sentence is a matter of fact, that second appeals against sentence are barred except where the High Court enhanced the sentence or the trial court lacked power to impose it, and that neither exception applied. It further held that 30 years is the minimum sentence prescribed by section 3(5) of the Counter-Trafficking in Persons Act, and distinguished mandatory from minimum sentences per the Supreme Court. The appeal was dismissed in its entirety. No costs order was made.

Questions the Court framed

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

  1. 1.Whether it is within the Court of Appeal's mandate to entertain a second appeal against sentence
  2. 2.Whether the sentence of 30 years imprisonment was harsh and excessive and should be interfered with

Key legal issues

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01

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

Holding

Section 361(1) of the Criminal Procedure Code bars a second appeal against sentence except where the High Court enhanced the sentence or the subordinate court had no power to pass it; severity of sentence is a matter of fact and outside the Court's jurisdiction.

Reasoning

The court traced the appellant's challenge purely to the severity of the 30-year sentence. Section 361(1)(a) of the Criminal Procedure Code provides that severity of sentence is a matter of fact, and section 361(1)(b) bars appeals against sentence except where the High Court enhanced it or the trial court lacked power under section 7 to pass it. Neither exception applied, as the High Court dismissed the appeal and did not enhance the sentence. The statutory bar alone disposes of the appeal.

p. 3
02

Whether a court may interfere with a statutory minimum sentence

Holding

A sentence of 30 years imposed for trafficking in person under section 3(5) of the Counter-Trafficking in Persons Act is the minimum sentence prescribed by law, leaving the court no room to go below it; the Court of Appeal cannot interfere with it on a second appeal.

Reasoning

Section 3(5) of the Counter-Trafficking in Persons Act prescribes imprisonment for not less than thirty years or a fine of not less than thirty million shillings or both. The trial magistrate imposed exactly that minimum. Relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, the court distinguished minimum sentences, which set a floor rather than a ceiling, from mandatory sentences; either way, a sentence at the statutory minimum cannot be attacked as excessive, and the Court lacked jurisdiction to reduce it.

Legal principles established

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  • On a second appeal, the Court of Appeal is barred by section 361(1) of the Criminal Procedure Code from hearing an appeal against sentence, except where the sentence has been enhanced by the High Court or the subordinate court had no power to pass it, because severity of sentence is a matter of fact.
  • Where the sentence imposed is the minimum sentence stipulated by statute, the Court of Appeal on second appeal has no mandate to interfere with it.

Court orders

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  1. 1.The appeal is dismissed in its entirety

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
Criminal Appeal No. 79 of 2018
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal lies on matters of law only)

Relief refused

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Review of the 30-year sentence and its substitution with a lesser or non-custodial sentence

Section 361(1) of the Criminal Procedure Code bars the Court of Appeal on a second appeal from hearing an appeal against sentence except where the sentence was enhanced by the High Court or the trial court had no power to pass it; severity of sentence is a matter of fact; and 30 years is the minimum statutory sentence under section 3(5) of the Counter-Trafficking in Persons Act

p. 3

Costs

No costs order was 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.

the statutory bar erected by the above provision explicitly bars this Court from hearing a second appeal on a matter of fact, and Parliament in an unequivocal manner legislated that severity of sentence is a matter of fact.
p. 3Jurisdictional bar on second appeals against sentence
In essence, section 361 ensures that the Court of Appeal focuses on ensuring the legal correctness of lower court decisions and does not become a court of second appeals on factual matters.
p. 3Purpose of section 361 Criminal Procedure Code
The upshot of the foregoing is that this appeal is without merit and the same is hereby dismissed in its entirety.
p. 4Final orders - dismissal of the appeal

Issues in the judgment

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minor

The Court cites the Supreme Court decision as 'Republic v Joshua Gichuki Mwangi' while the full name given earlier is 'Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (amicus curiae)' - apparently the same case referred to by two renderings.

minor

The coram is listed only by surname and rank without full names, making exact judge-name rendering uncertain.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kemunto v Republic (Criminal Appeal 027 of 2019) [2026] KECA 169 (KLR)", Case Analysis (2026). Criminal Appeal (not separately numbered in judgment; arising from Criminal Case No. 168 of 2016, Chief Magistrate's Court at Kisii, and Criminal Appeal No. 79 of 2018, High Court at Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/169/eng@2026-01-30

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