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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. E028 of 2022

Martin Kibet Partega v Republic

Court of Appeal
25 September 2026
1,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a lawful sentence on a second appeal, so the 20-year defilement sentence stands.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate's Court at Sirisia of defilement of a 14-year-old girl contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment. His first appeal to the High Court at Bungoma (Githinji, J.) against conviction and sentence was dismissed in its entirety on 17th July 2017. He then filed this second appeal, limited to sentence only, urging that he is a remorseful first-time offender who has served about twelve years, undergone theological and discipleship studies, and left young children in the care of his elderly mother. The respondent countered that severity of sentence is a matter of fact outside the Court's jurisdiction under Section 361 of the Criminal Procedure Code, and that the 20-year term is the mandatory minimum under Section 8(3) of the Sexual Offences Act. The Court held that on a second appeal it may consider only matters of law; severity of sentence is a matter of fact, and its jurisdiction over sentence is confined to cases where the High Court enhanced the sentence or the trial court had no power to pass it. Relying on the Supreme Court's decision in Republic v Mwangi; ISLA (amicus curiae) and its own precedents, the Court found the 20-year sentence lawful and legal, declined to interfere, and dismissed the appeal. 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 there is any justification for the Court to interfere with the sentence of 20 years' imprisonment imposed on the appellant

Key legal issues

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01

Jurisdiction of the Court of Appeal over severity of sentence on a second appeal

Holding

The Court lacks jurisdiction to entertain a complaint on the severity of sentence, which is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, save where the sentence was enhanced by the High Court or was unlawful.

Reasoning

Section 361(1) confines second appeals to matters of law and expressly deems severity of sentence a matter of fact. The Supreme Court in Republic v Mwangi; ISLA (amicus curiae) confirmed that a complaint that a sentence was harsh and excessive falls outside the Court of Appeal's lawful purview on second appeal.

p. 10
02

Legality of the 20-year sentence under Section 8(3) of the Sexual Offences Act

Holding

The sentence of 20 years for defilement of a 14-year-old girl is the lawful minimum prescribed by Section 8(3) of the Sexual Offences Act and is both lawful and legal.

Reasoning

Section 8(3) prescribes a minimum of 20 years' imprisonment for defilement of a girl aged between 12 and 15 years. The victim was 14 years old, so the trial court's sentence matched the statutory minimum, leaving no basis to question its legality under section 361(1)(b).

p. 10

Legal principles established

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  • On a second appeal, severity of sentence is a matter of fact and the Court of Appeal cannot entertain it except where the High Court enhanced the sentence or the trial court had no power to pass it.
  • An appellate court will not easily interfere with a lawful sentence imposed in the exercise of the trial court's discretion.

Court orders

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  1. 1.The appeal against the sentence is dismissed

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 Bungoma
HCCRA No. 81 of 2014
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)

Relief refused

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Reduction of the 20-year sentence on grounds of rehabilitation and time served

Severity of sentence is a matter of fact outside the Court's second-appeal jurisdiction under section 361(1) of the Criminal Procedure Code

p. 10

Costs

No costs order 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.

We thus hold that the appeal against the sentence lacks merit and is dismissed.
p. 13Final orders - dismissal of appeal against sentence
the Court’s jurisdiction to hear an appeal against sentence is only limited to where the High Court enhanced the sentence or where the trial court had no power to pass the sentence
Scope of second-appeal jurisdiction on sentence
The sentence is not only lawful but also legal.
p. 10Legality of the statutory minimum sentence

Issues in the judgment

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minor

Judgment refers to life imprisonment though the sentence under appeal is 20 years

minor

Delivery date of 2026 appears anomalous relative to the 2022 appeal filing

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martin Kibet Partega v Republic", Case Analysis (2026). Criminal Appeal No. E028 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1876/eng@2026-09-25

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