Kariuki v Republic (Criminal Appeal E035 of 2024) [2026] KECA 1588 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed this criminal appeal because second appeals can only question points of law, not facts or sentence severity.
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 confined by section 361 of the Criminal Procedure Code to matters of law, may entertain grounds of appeal raised for the first time in the second appeal and neither canvassed nor argued in the courts below.
- 2.Whether the Court of Appeal on a second appeal has power to reconsider or interfere with the severity of the sentence imposed.
- 3.Whether the mandatory minimum sentence under section 9(2) of the Sexual Offences Act violates the discretionary sentencing power of judges and magistrates.
Key legal issues
#Whether the mandate of the Court of Appeal on a second appeal is confined to matters of law.
Yes. By dint of section 361 of the Criminal Procedure Code, a second appeal is confined to points of law; the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
The Court identified section 361 of the Criminal Procedure Code as the source and limit of its jurisdiction: a second appeal lies only on a matter of law, and severity of sentence is a matter of fact. It adopted the statement in Karingo v Republic that a second appeal must be confined to points of law and that the Court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence. The appellant's complaints of contradictions and of variance between the evidence and the charge sheet therefore fell outside the permissible scope of the second appeal.
Whether a party may take a new point of law for the first time in a second appeal where it was not argued in the courts below.
No. Where grounds are advanced for the first time in the second appeal and were neither canvassed below nor argued in submissions, the Court is not obligated to pronounce on them; a litigant cannot take a completely new point of law on appeal.
The Court found that, save for the ground on the legality of the sentence, the appeal rested on completely new points of law advanced for the first time in the Court, neither canvassed before the two courts below nor argued in the appellant's submissions. Citing Alfayo Gombe Okello, issues must be raised at the earliest opportunity, and, following Sudi Mnalo Mweke, which adopted the East African Court of Appeal decision in Alwi Abdulrehman Saggaf, a litigant cannot take a completely new point of law on appeal; entertaining such points would decide matters of the highest importance without the assistance of the judges below.
Whether the Court of Appeal on a second appeal may reconsider the severity or legality of the sentence, including the contention that the mandatory minimum sentence under section 9(2) of the Sexual Offences Act violates judicial sentencing discretion.
No. Severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code and is not open for consideration on second appeal; the Court has no discretionary power to reconsider a sentence on second appeal unless the sentence is unlawful.
Although the legality of the sentence was the one ground properly before it, the Court held it had no discretionary power to reconsider a sentence on second appeal. Section 361(1) of the Criminal Procedure Code makes severity of sentence a matter of fact, per MGK v Republic, and per Oyoko v Republic the Court is not concerned with severity on second appeal unless the sentence is unlawful. The argument, built on South African authority, that minimum sentences usurp judicial discretion did not render the ten-year term unlawful, and the appeal failed.
Legal principles established
#- On a second appeal the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
- A litigant cannot take a completely new point of law for the first time on appeal where it was not argued in the courts below; an appellate court will not decide a point that was not the subject of argument and decision below.
- Severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code and is therefore not a legal issue open for consideration by the Court of Appeal on second appeal; the Court is not concerned with the severity of the sentence unless the sentence is unlawful.
Court orders
#- 1.The appeal fails and is dismissed.
- 2.The judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2022 is upheld.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Appeal No. E012 of 2021
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal to the Court of Appeal against a decision of the High Court in its appellate jurisdiction, on a matter of law only)
Relief refused
#Quashing of the conviction on the grounds that the evidence was at variance with the charge sheet, that the offence was not proven, and that the appellant was wrongly declared a dangerous offender
These were new points of law advanced for the first time in this Court, neither canvassed before the two courts below nor argued in submissions; issues must be raised at the earliest opportunity.
Reduction of the ten-year sentence and a finding that the mandatory minimum sentence under section 9(2) of the Sexual Offences Act violates the discretionary sentencing power of judges and magistrates
On second appeal the Court is confined to matters of law; severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code, and the Court has no discretionary power to reconsider a sentence on second appeal unless the sentence is unlawful.
Costs
No costs order was made 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.
Consequently, we find that the appeal fails and is hereby dismissed. Accordingly, the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2022 is hereby upheld. Orders accordingly.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
The remaining grounds were neither canvassed before the two courts below or argued in his submissions. Accordingly, we are not obligated to pronounce ourselves thereon.
the litigant could not take a completely new point of law for the first time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.
it is indubitable that this Court has no discretionary power to reconsider a sentence on second appeal.
As regards the sentence, under section 361(1) of the Criminal Procedure Code severity of sentence is a matter of fact and therefore not a legal issue open for consideration by this Court on second appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Republic (Criminal Appeal E035 of 2024) [2026] KECA 1588 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from High Court Criminal Appeal No. E012 of 2021, Garsen). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1588/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.