Richard John Nyabuga v Republic

3. Aggrieved by the said decision, the appellant appealed to the High Court at Kisii in Criminal Appeal No. 105 of 2009 mainly contending that the sentence was harsh and excessive. The High Court (Makhandia J. - as he then was) noted that the appellant was convicted on his own plea of guilty and stated that he lacked jurisdiction or discretion over the matter since the sentence meted was a minimum mandatory sentence. Consequently, he dismissed the appeal and upheld the sentence in a judgment delivered on 19th July 2010. 4. Undeterred the appellant lodged the present appeal. In his grounds of appeal dated 4th January 2025, he faults the first appellate judge for: (a) upholding the life sentence without taking into consideration that its indefinite nature denies him any future prospect of release contrary to Article 28 of the Constitution; (b) upholding mandatory indefinite life sentence without considering that it was not a judicial evaluated sentence but a legislative fiat; (c) upholding the imposed mandatory life sentence under section 8 (2) of the Act without considering that due to its mandatory nature, his mitigation was not taken into account; (d) upholding the life sentence, yet its indefinite nature goes against the realization of the primary purpose of a sentence of imprisonment as stipulated in the United Nations Minimum Standard rule (Mandela rule No. 4) and the prison’s motto of “Kurekebisha na haki.” 5. During the virtual hearing of this appeal on 2nd September 2025, the appellant appeared virtually in person, while learned Senior Assistant Director of Public Prosecutions, Mr. Solomon Njeru appeared for the respondent. Both parties relied on their written submissions. 6. In support of his appeal, the appellant merged all his grounds of appeal and submitted that the indefinite sentence under section 8 (1) and (2) of the Act offends Articles 28 and 29 (f) of the Constitution for violating his right to dignity and it subjects him to psychological torture contrary to Article 25(a) and 29 (f) of the Constitution. He cited this Court’s decision in Ayako vs Republic [2023] KECA 1563 (KLR) that life sentence translates to thirty years imprisonment and prayed that his sentence to be substituted with a definite term. He urged us to appreciate that at the time of the offence he was young, irate and un aware of the consequences of his actions, hence he indulged in crime. But, being in jail has taught him the consequences of crime. He prayed that this Court gives him a second chance. 7. In opposing the appeal, the Mr. Njeru submitted that this court only deals with matters of law and the issue of severity of the sentence is a matter of fact. He argued that under section 348 of the Criminal Procedure Code, no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence and since in this case, the sentence is provided under section 8 (1) and (2) of the Act, it is lawful. 8. We have considered the record, the submissions presented by both parties, and the law. The appellant’s grounds can be condensed into one ground, namely; life imprisonment is harsh, excessive and unconstitutional. 9. As we determine this ground, we must bear in mind the provisions of section 348 of the Criminal Procedure Code the import of which is that an accused person who has pleaded guilty and has been convicted on that plea generally cannot appeal against the conviction itself. However, the accused still retains the right to appeal the extent or legality of the sentence imposed. This provision prevents appeals against the conviction when the plea is voluntary and valid, focusing the appeal on the appropriateness and legality of the punishment rather than the guilt itself. The appeal must focus solely on the sentence. This means that the appellant must demonstrate why the sentence is inappropriate given the circumstances or why it was imposed incorrectly or that it is illegal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/167/eng@2026-01-30 2

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10. Also relevant is section 361 (1) of the Criminal Procedure Code which governs second appeals to this Court, allowing a party to appeal a High Court's appellate decision on a point of law only, not fact or the severity of a sentence, unless the High Court enhanced it improperly or the subordinate court lacked the power to impose it in the first place. The section bars this Court from entertaining appeals on matters of fact. It provides that severity of sentence is generally a matter of fact. However, where the courts below have acted on a misapprehension of the law, or where the sentence imposed is illegal or based on wrong principles, this Court is entitled to intervene. (See Njoroge vs Republic [1982] KLR 388; Karingo vs Republic [1982] KLR 213). 11. The appellant was convicted on his own plea of guilty and he was sentenced to life imprisonment as provided under section 8 (1) and (2) . In his effort to persuade this Court to find that the sentence of life imprisonment is illegal, he relied on this Court’s dictum in Evans Nyamari Ayako vs Rep (supra). However, this decision is no longer good law because it was overturned by the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July 2024), in which it stated: “ 56. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences, however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognized term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances. 57 ...In the Muruatetu case, this Court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.” 12. Importantly, the Supreme Court in above decision afirmed the lawfulness of mandatory minimum sentences provided under the Sexual Offences Act. The Apex Court maintained that the said sentences are not only lawful but so long as they remain in our law books, they are good law and must be imposed upon conviction. It emphasized that courts have no discretion not to impose the mandatory sentences provided under the Act upon convicting an accused person. Therefore, the appellant’s appeal against sentence questioning the legality and propriety of the sentence is unsustainable because he has not demonstrated that the sentence is inappropriate or illegal. The upshot of the foregoing is that this appeal is devoid of merit. Accordingly, we hereby dismiss it in its entirety. 13. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/167/eng@2026-01-30 3

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DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF JANUARY, 2026. P. NYAMWEYA ............................. JUDGE OF APPEAL L. ACHODE ............................. JUDGE OF APPEAL J. MATIVO ............................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/167/eng@2026-01-30 4

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