Mbaka v Republic (Criminal Appeal 5A of 2020) [2026] KECA 299 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a life sentence for defilement on a second appeal, because complaining a sentence is too harsh is not a legal argument.
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 the severity of a sentence, severity of sentence being a matter of fact under section 361(1)(a) of the Criminal Procedure Code
- 2.Whether the mandatory life imprisonment prescribed under Sections 8(1) and 8(2) of the Sexual Offences Act is unconstitutional and excessive
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal against sentence
Severity of sentence is a matter of fact, not law, and is therefore outside the Court's second-appeal jurisdiction under section 361(1)(a) of the Criminal Procedure Code.
Section 361(1) confines second appeals to matters of law and expressly deems the severity of sentence to be a matter of fact. This construction was recently confirmed by the Supreme Court in Republic v Mwangi (ISLA), which held that an appeal on the ground that a sentence was harsh and excessive falls outside the Court of Appeal's purview. The appellant therefore cannot invoke the Court's jurisdiction merely by asserting the sentence was excessive or that mitigation was not considered.
Legality of the life imprisonment imposed under Sections 8(1) and 8(2) of the Sexual Offences Act
The life imprisonment imposed for defilement of a child aged eleven years or less is lawful and legal; the mandatory minimum sentences under the Sexual Offences Act are constitutional per the Supreme Court in Republic v Mwangi (ISLA).
The appellant was convicted of defilement of a six-year-old girl contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which prescribes life imprisonment. The respondent relied on the Supreme Court's declaration in Republic v Mwangi (ISLA) that the mandatory minimum sentences under the Act are constitutional. The Court adopted that position and found nothing to justify interference with the sentence, which was lawful and within the trial court's discretion.
Legal principles established
#- On a second appeal under section 361(1)(a) of the Criminal Procedure Code, the severity of sentence is a matter of fact and the Court of Appeal is barred from entertaining a complaint that a sentence is harsh or excessive, unless the sentence was enhanced by the High Court or the subordinate court lacked power to impose it
Court orders
#- 1.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Review of the life imprisonment sentence to a lesser term
Severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code and outside the Court's second-appeal jurisdiction; the sentence is lawful
Costs
No order as to costs is 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, the appellant has not established any grounds upon which this Court can interfere with his sentence. Consequently, we find that the appeal lacks merit and is dismissed.
Under Section 361(1)(a) of the Criminal Procedure Code, severity of sentence is a matter of fact. It is, therefore, not a legal issue open for consideration by this Court on second appeal unless the trial court acted in error.
Guided by the provisions of Sections 8(1) and 8(2) of the Sexual Offences Act, the appellant was sentenced to life imprisonment for the said ofience by the trial court. The same is not only lawful but also legal.
It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaka v Republic (Criminal Appeal 5A of 2020) [2026] KECA 299 (KLR)", Case Analysis (2026). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/299/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.