Onchuru v Republic

2. 5. Although the Appellant states he is remorseful and according to the record he had no previous conviction, his action display a violent man and the fact that he committed the act to a child leaves me with no option but to arm the sentence. 6. The appeal is dismissed.” The appellant has now led a second appeal to this Court, and has raised ve (5) grounds of appeal in his Memorandum of Appeal dated 12th August 2025 namely: 1. The appellant was driven by the wave of Muruatetu 1, to seek leniency on the sentence which was ill-advised. 2. The lower court erred in law by failing to observe that the prosecution did not prove their case beyond reasonable doubt to warrant safe conviction and a harsh sentence of 20 years in prison. 3. The lower court erred in law by failing to observe that the alleged bleeding was not authenticated by an expert who examined the alleged date of the oence. 4. The lower court erred in law by failing to consider the contradictory evidence of PW 1 the key witness. 5. The lower court erred in law by failing to observe that the provisions of section 124 of the Evidence Act was not complied with thus led to miscarriage of justice hence unfair trial. 3. The appellant accordingly requests us to analyse the evidence afresh and allow the appeal, quash both the conviction and sentence set him at liberty. The particulars of the oence he was convicted of were that on 18th July 2017 at [Particulars withheld] Sub location in Kisii central district within Kisii County, the appellant intentionally caused his penis to penetrate the vagina of CK, a child aged 12 years. In the alternative he faced a charge of committing an indecent act with a child. 4. We heard the appeal on the Court’s virtual platform on 3rd September 2025 and the appellant, Mr. Douglas Ongwenyi, was present virtually from Kibos maximum prison. Learned Senior Assistant Director of Prosecution, Mr. Solomon Njeru, appeared for the respondent. Parties placed reliance on their submissions dated 12th August 2025 and 29th August 2025 respectively. 5. The role of this Court as a second appellate Court was set out in Karani vs R (2010) 1 KLR 73 as follows: “ This is a second appeal. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior Court on fact unless it is demonstrated that the trial court and the rst appellate Court considered matters, they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong, in which case such omission or commission would be treated as a matter of law.” 6. The appellant in his submission dated 12th August 2025, submitted that he was ill advised to admit his conviction and pray for leniency during the rst appeal after Muruatetu 1. He therefore sought permission from this Court to argue his appeal on both conviction and sentence. His case was that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1907/eng@2026-09-25 2

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prosecution did not prove their case based on the three (3) ingredients required to prove delement. He proceeded to make submissions on the ndings by the trial Court on the victim’s age, the requirement of penetration and his identication as the perpetrator of the oence. 7. Mr. Njeru submitted that the High Court found the conviction to be proper since the appellant did not contest it, as his appeal at the High Court was only on sentence, and the present appeal against conviction was an afterthought. Mr Njeru submitted that the conviction was safe and also proceeded to submit on the evidence that proved the oence and the legality of the sentence. 8. It is prudent to address the preliminary issue as to whether the appellant can appeal against his conviction on his second appeal, when his rst appeal was on sentence only. As stated earlier, second appeals such as the present appeal are limited strictly to points of law, meaning questions of fact or new factual arguments cannot be introduced, and an appeal in this Court can only be anchored on a matter determined by the High Court in the decision subject of the appeal before this Court. Therefore, 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. 9. As regards, his appeal against sentence, section 361(1)(a) of the Criminal Procedure Code that grants this Court jurisdiction on second appeal to entertain an appeal against sentence from the High Court where the appeal raises a point of law regarding the sentence imposed, either on the lawfulness of the sentence, or the power of the Court to impose the sentence. The appellant was sentenced to 20 years’ imprisonment under Section 8(3) of the Sexual Offences Act, which provides that: “a person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 10. In its decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (2024) KESC 34 (KLR), the Supreme Court of Kenya addressed the legality of minimum sentences and particularly whether the ratio decidendi in Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (the Muruatetu Case) on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act 11. The Supreme Court held as follows in this regard: 12. “ 57. 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 oor 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…. 58. 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 oences, are vastly dierent from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting dierent sentencing for criminal oences, 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 oenders, and eliminating unjustiable sentencing disparities.” Similarly, the Supreme Court held in Republic vs Julius Kitsao Manyeso, [2025] KESC 16, that the decision in the Muruatetu Case did not invalidate mandatory sentences or minimum sentences in the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1907/eng@2026-09-25 3

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Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu Case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. The sentence of twenty (20) years that the trial magistrate imposed upon the appellant was the minimum sentence provided under section 8(3) of the Sexual Offences Act. The sentence was, therefore, in light of the above-cited decision by the Supreme Court, neither excessive nor illegal in the context of the oence that the appellant was convicted of. 13. The upshot of the foregoing analysis is that the appellants’ appeal against his conviction is not properly before us, nor has the appellant demonstrated any legal justication for this Court to interfere with the sentence that was imposed against him. Consequently, the appeal has no merit and is dismissed. 14. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 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 DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1907/eng@2026-09-25 4

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