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Court of AppealPartially AllowedCriminal Appeal No. 248 of 2014· [2015] KECA 468 (KLR)

M K v Republic [2015] KECA 468 (KLR)

Court of Appeal of Kenya

31 July 2015

M. K. Koome

P. M. Mwilu JOJ. Otieno-Odek

2,789 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that 'shall be liable' in the Sexual Offences Act sets a maximum sentence, not a mandatory one, restoring a 20-year term.

What this practically means

Executive summary

The appellant, M K, was convicted by a trial magistrate of incest under Section 20(1) of the Sexual Offences Act and sentenced to twenty years' imprisonment. His first appeal to the High Court at Machakos (Mutende, J.) challenged conviction only; the judge upheld the conviction but, on the court's own motion, held the twenty-year sentence illegal and substituted life imprisonment. The appellant appealed to the Court of Appeal, contending that the sentence was enhanced without notice or warning, contrary to Section 364(2) of the Criminal Procedure Code and Article 50 of the Constitution. The State argued that the proviso to Section 20(1) prescribed a mandatory minimum of life imprisonment where the victim is under eighteen, so the judge merely corrected an illegal sentence under the proviso to Section 364(2). The Court of Appeal, as a second appeal confined to questions of law, held that the phrase "not less than", used throughout the Act whenever a minimum sentence is intended, does not appear in the proviso to Section 20(1). Following Opoya v Uganda, the court held that "shall be liable" language prescribes a maximum sentence and leaves sentencing discretion intact. The proviso therefore permitted a sentence anywhere between ten years and life; twenty years was lawful and not an illegal sentence, and the High Court erred in enhancing it. The court also reiterated that it will not alter a sentence unless the judge below acted on wrong principles or overlooked material factors. The appeal on sentence was allowed, the life sentence set aside, and the original twenty-year term reinstated from the date of the trial court's sentence. The conviction was not disturbed.

Key legal issues

Whether the proviso to Section 20(1) of the Sexual Offences Act creates a mandatory minimum sentence of life imprisonment

Holding

It does not; it confers a discretion to impose up to life imprisonment as a maximum

Reasoning

The phrase "not less than", used throughout the Sexual Offences Act whenever a minimum sentence is prescribed, is absent from the proviso. The proviso says the accused "shall be liable to imprisonment for life". Following Opoya v Uganda and the dicta of North J in James v Young, "shall be liable" language prescribes a maximum, leaving sentencing discretion. Contrasted with Section 8(2), which uses mandatory "shall be sentenced to imprisonment for life", the proviso permits any sentence between ten years and life.

p. 4

Whether the twenty-year sentence imposed by the trial court was illegal such that the High Court could correct it under the proviso to Section 364(2) of the Criminal Procedure Code

Holding

The twenty-year term was lawful; the High Court erred in treating it as illegal and enhancing it to life

Reasoning

Since the proviso to Section 20(1) does not mandate life imprisonment, the trial magistrate's twenty-year term fell within the lawful range of ten years to life. The High Court's power to alter an illegal sentence under the proviso to Section 364(2) was therefore unavailable, and the judge acted on wrong principles and overlooked Opoya v Uganda in holding the sentence illegal and enhancing it without notice.

p. 5

Legal principles established

In penal statutes, the words "shall be liable" prescribe a maximum sentence only, conferring discretion on the sentencing court, unlike mandatory phrasing such as "shall be sentenced to"
A person convicted of incest where the female victim is under eighteen years is liable to imprisonment between ten years and life; the proviso to Section 20(1) of the Sexual Offences Act does not impose a mandatory minimum of life
An appellate court will not alter a sentence unless the trial judge acted on wrong principles or overlooked material factors
A second appeal to the Court of Appeal is confined to points of law and the court will not interfere with concurrent findings of fact unless based on no evidence

Court orders

1.The corrected or enhanced term of life imprisonment is set aside
2.The original sentence of twenty (20) years meted out by the trial court is reinstated with effect from the date the trial court passed it

Authorities

Legislation

Sexual Offences ActSection 20(1)
Sexual Offences ActSection 3(3)
Sexual Offences ActSection 4
Sexual Offences ActSection 5(2)
Sexual Offences ActSection 8(2)
Sexual Offences ActSection 8(3)
Criminal Procedure CodeSection 354(6)
Criminal Procedure CodeSection 364(2)
Criminal Procedure CodeSection 361(1)
Penal CodeSection 296(2)
Constitution of KenyaArticle 50

Cases cited (7)

Chemagong vs. Republic
(1984) KLR 213
Reuben Karari s/o Karanja vs. Republic
17 EACA 146
Opoya -v- Uganda
(1967) EA 752
James -v- Young
27 Ch. D. 655
Ogolla s/o Owuor
(1954) EACA 270
Charles Muriuki Mwangi -v- R
2015 eKLR
Christopher Mwangangi Katumo -v- R
2007 eKLR

On appeal from: High Court of Kenya at Machakos; H.C.CR.A No. 89 of 2012
Jurisdiction invoked: Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "M K v Republic [2015] KECA 468 (KLR)", Case Analysis (2015). Criminal Appeal No. 248 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/468/eng@2015-07-31

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