Onchuru v Republic
The bottom line
#Kenya's Court of Appeal confirmed that you cannot raise conviction issues on a second appeal if your first appeal only challenged the sentence.
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 appellant can appeal against his conviction on a second appeal when his first appeal was on sentence only
- 2.Whether the 20-year minimum sentence under section 8(3) of the Sexual Offences Act is lawful and whether the Court may interfere with it
Key legal issues
#Scope of a second appeal where the first appeal was on sentence only
An appeal against conviction is not properly before the Court because the High Court never addressed the safety of the conviction
Second appeals are strictly limited to points of law under section 361 of the Criminal Procedure Code. New factual arguments cannot be introduced, and the second appellate court's jurisdiction is confined to matters actually determined by the first appellate court. Since the appellant abandoned conviction at the High Court and only challenged sentence, the conviction issue is an afterthought and outside the Court's jurisdiction.
Legality of the minimum 20-year sentence under section 8(3) of the Sexual Offences Act
The sentence is lawful; Muruatetu does not extend to minimum sentences
Relying on Republic vs Mwangi (ISLA) and Republic vs Julius Kitsao Manyeso, the Court held that Muruatetu concerned only the mandatory death sentence for murder. Minimum sentences set a floor and preserve judicial discretion, so they are constitutionally distinct from mandatory sentences and remain valid under the Sexual Offences Act.
Legal principles established
#- A second appeal lies only on matters of law and only on matters determined by the High Court in the decision under appeal
- Muruatetu does not invalidate minimum sentences under the Sexual Offences Act; minimum sentences leave courts discretion above the floor
Court orders
#- 1.The appeal against conviction was held not properly before the Court
- 2.The appeal against sentence was found to lack merit
- 3.The appeal was dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii HCCr. App No. 49 of 2019
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Permission to argue the appeal on conviction
The High Court never determined the safety of the conviction, so the issue is not properly before the second appellate court
Interference with the 20-year sentence
The sentence is the lawful minimum under section 8(3) of the Sexual Offences Act and Muruatetu does not invalidate minimum sentences
Costs
No costs order appears 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.
since the High Court did not have the opportunity to address the question as to whether the appellant’s conviction was safe, his appeal against conviction is not properly before us
the decision in the Muruatetu Case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute
Consequently, the appeal has no merit and is dismissed.
Issues in the judgment
#High Court excerpt refers to a 15-year sentence while the judgment records a 20-year sentence
Appellant's second name rendered inconsistently within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onchuru v Republic", Case Analysis (2026). Criminal Appeal 126 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1907/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.