Alex Muthiani Mwendo v Republic

Section 361(1) CPC confines second appeals to matters of law. The Court drew a line between complaints of severity, which are closed to a second appeal, and questions of legality or constitutionality, which are questions of law. Because the appellant attacked the sentence on constitutional grounds (mandatory minimums) and raised statutory compliance issues (remission and custody credit), the Court entertained the appeal, while making clear that mere severity would not suffice.

Relying on the Supreme Court's decision in R vs Joshua Gichuki Mwangi & 4 Others, which upheld the lawfulness of sentences under the Sexual Offences Act, the Court rejected the submission that the minimum sentences unconstitutionally deny judicial discretion. Since the complainant was 15 years old, the applicable provision was Section 8(3), and the 20-year term was the prescribed sentence. The Court therefore saw no reason to set the sentence aside.

The appellant sought substitution of the 20-year term with a non-custodial sentence or release on probation under Section 4 of the Probation of Offenders Act after commutation of one-third under Section 46 of the Prisons Act. The Court held that altering a custodial sentence to probation would change the nature of the sentence, a step not open to a second appellate court whose jurisdiction is limited to matters of law under Section 361(1) CPC.

The Court examined Section 46 of the Prisons Act and observed that remission of one-third is earned by industry and good conduct, may be forfeited or deprived under the later subsections, and may be extended on grounds of exceptional merit, permanent ill-health or other special ground by the Commissioner. Because the scheme vests administration of remission in the Commissioner of Prisons, the Court held it is not a matter for determination on appeal and let the law take its natural course.

Both the trial court and the High Court failed to consider the time the appellant spent in custody - from his arrest on 9 January 2013 until release on cash bail (assumed, on benefit of doubt, to be 8 March 2013), and from his re-arrest on 3 June 2014 until judgment on 17 September 2014. The Court held the proviso to Section 333(2) CPC is mandatory, that the omission is an error of law, and ordered that the custody period be deducted from the sentence.