Mwendo v Republic (Criminal Appeal E028 of 2025) [2026] KECA 1640 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence but ordered that time the man spent in custody before sentencing be deducted from it.
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 should revisit the sentence imposed on the appellant (the sole issue the Court framed for determination)
- 2.Whether the 20-year sentence prescribed by Section 8(3) of the Sexual Offences Act is lawful, in light of the challenge to the constitutionality of the statutory minimum sentences
- 3.Whether the Court can release the appellant on probation under Section 4 of the Probation of Offenders Act or substitute a non-custodial sentence on a second appeal
- 4.Whether remission of one-third of the sentence under Section 46 of the Prisons Act is a matter the Court can determine or order on appeal
- 5.Whether the period the appellant spent in custody before sentence must be credited under the proviso to Section 333(2) of the Criminal Procedure Code
Key legal issues
#Whether the Court of Appeal has jurisdiction to interfere with sentence on a second appeal under Section 361(1) of the Criminal Procedure Code
Jurisdiction is confined to matters of law; severity of sentence is ordinarily a matter of fact, but where the legality or constitutionality of a sentence is in issue, it becomes a matter of law and the Court may intervene
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.
Whether the 20-year minimum sentence under Section 8(3) of the Sexual Offences Act is lawful
The sentence is lawful; the Supreme Court has upheld the mandatory minimum sentences under the Sexual Offences Act, and the term imposed was the one prescribed by Section 8(3) for a minor aged 15 years
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.
Whether the Court can substitute a non-custodial or probation sentence on a second appeal
No; releasing the appellant on probation under Section 4 of the Probation of Offenders Act would amount to substituting the nature of the sentence on a second appeal, which the Court declined to do
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.
Whether remission of one-third of the sentence under Section 46 of the Prisons Act is a matter for the appellate court
No; remission is earned by industry and good conduct and falls within the ambit of the Commissioner of Prisons; a request for remission is not an appeal against sentence and the Court refrained from making any order on it
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.
Whether the period spent in custody before sentence must be taken into account under the proviso to Section 333(2) of the Criminal Procedure Code
Yes; the proviso to Section 333(2) mandates courts to take into account the period spent in custody when pronouncing sentence, and the omission to do so is a matter of law entitling the second appellate court to intervene
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.
Legal principles established
#- On a second appeal under Section 361(1) of the Criminal Procedure Code, severity of sentence is a matter of fact and not open to review, but the legality or constitutionality of a sentence is a matter of law on which the second appellate court may intervene
- The mandatory minimum sentences under the Sexual Offences Act are lawful, as held by the Supreme Court in R vs Joshua Gichuki Mwangi & 4 Others, and a sentence prescribed by the Act cannot be set aside on appeal
- A second appellate court cannot substitute the nature of the sentence imposed, for example by converting a custodial sentence into probation under Section 4 of the Probation of Offenders Act
- Remission of sentence under Section 46 of the Prisons Act is administered by the Commissioner of Prisons and is not a matter on which an appellate court can make orders; a request for remission is not an appeal against sentence
- The proviso to Section 333(2) of the Criminal Procedure Code mandatorily requires courts to take into account the period an accused spent in custody before sentence; failure to do so is an error of law which a second appellate court will correct
Court orders
#- 1.The sentence of 20 years imprisonment under Section 8(3) of the Sexual Offences Act is affirmed
- 2.The period spent in custody - 9 January 2013 to 26 February 2013 (the Court giving the appellant the benefit of the doubt and assuming release on cash bail on 8 March 2013) and 3 June 2014 to 17 September 2014 - shall be taken into account and reduced from the sentence pursuant to Section 333(2) of the Criminal Procedure Code
- 3.The appeal partially succeeds to the extent of the custody-credit order only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Machakos
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code - second appeal lies only on matters of law
Relief refused
#Setting aside the 20-year sentence on the ground that the minimum sentences under the Sexual Offences Act are unconstitutional
The Supreme Court in R vs Joshua Gichuki Mwangi & 4 Others upheld the lawfulness of the sentences under the Sexual Offences Act; the 20-year term was the sentence prescribed by Section 8(3) for a minor aged 15 years
Release on probation under Section 4 of the Probation of Offenders Act or substitution with a non-custodial sentence
That would amount to substituting the nature of the sentence on a second appeal, which the Court cannot do
Commutation of one-third of the sentence and remission under Section 46 of the Prisons Act
Remission is earned by industry and good conduct and falls within the ambit of the Commissioner of Prisons; a request for remission cannot be deemed an appeal against sentence
Costs
No order as to costs was made; the judgment is silent on costs.
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.
Accordingly, the sentence of 20 years under Section 8(3) of the Sexual Offences Act is affirmed, save that we order that the period spent in custody, as outlined above, be taken into account. The appeal partially succeeds to that extent only.
Severity of sentence is ordinarily a matter of fact, but where legality or constitutionality is in issue, it becomes a matter of law.
In Joshua Gichuki Mwangi (supra), the Supreme Court upheld the lawfulness of the sentences under the Sexual Offences Act.
We are in the same vein unable to consider releasing the appellant on probation pursuant to Section 4 of the Probation of Offenders Act as that would be substituting the nature of sentence on a second appeal.
The issue of remission of sentence is not a matter for this Court to consider or make an order on appeal, for it falls within the ambit of the Commissioner of Prisons as demonstrated by the wording of Section 46 above.
The omission to consider this period spent in custody is a matter of law, and this Court is entitled to intervene to ensure compliance.
Issues in the judgment
#The judgment copy bears no case title, appeal number or neutral citation, and the appellant's name is not stated anywhere in the text; the parties are identified only as 'the appellant' and 'the respondent', which impairs case identification
The copy contains OCR/typographical errors ('ofience' for 'offence', 'Withhels' for 'Withheld', 'efiect' for 'effect', 'afirmed' for 'affirmed'); quotes should be verified against the official judgment before use
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendo v Republic (Criminal Appeal E028 of 2025) [2026] KECA 1640 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1640/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.