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Court of AppealDismissedCriminal Appeal 11 of 2020

ENL v Republic

Court of Appeal of Kenya
22 July 2022
RNRN NambuyeAMAK MurgorSKS ole Kantai
1,356 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can only review legal errors on a second appeal, so the 25-year incest sentence stands.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi against the dismissal of the appellant's first appeal by the High Court (Achode, J.) on 20 June 2012. The appellant had been convicted by the Chief Magistrate's Court at Makadara in Criminal Case No. 3941 of 2009 of incest by a male person contrary to Section 20(1) of the Sexual Offences Act, the particulars being that he penetrated his 14-year-old daughter, and was sentenced to 25 years imprisonment. The Court of Appeal (Nambuye, Murgor and ole Kantai, JJA) restated that its mandate on a second appeal is confined by Section 361(1)(a) of the Criminal Procedure Code to issues of law, citing Stephen M'Irungi & Another v Republic for the rule that an appellate court limited to questions of law must accept the lower courts' findings of fact and interfere only where no reasonable tribunal could have reached the conclusion. The Court reviewed the evidence only to establish whether the courts below discharged their mandate, finding that the prosecution proved PW1's age of 14 years, that the appellant was her step-father, and that both doctors confirmed she was defiled by the person she named as the appellant. On sentence, the Court held that severity of sentence is a matter of fact outside its mandate unless the sentence is illegal, and that the 25-year term was within the law, the proviso to Section 20 prescribing life imprisonment for victims under 18. The appeal was dismissed in its entirety. The judgment was signed by Murgor and ole Kantai, JJA, Nambuye, JA having retired, in accordance with rule 32(2) of the Court's rules.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the two courts below carried out their mandate as required of them in law
  2. 2.Whether the Court may interfere with the sentence of 25 years imprisonment imposed on the appellant

Key legal issues

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01

Scope of the Court's mandate on a second appeal

Holding

The Court is limited to issues of law only and must resist re-evaluating findings of fact made by the trial court and re-assessed by the first appellate court.

Reasoning

Section 361(1)(a) Criminal Procedure Code confines a second appeal to questions of law. The Court adopted the Stephen M'Irungi formulation: it must accept the lower courts' findings of fact and not treat factual findings as issues of law or mixed findings, interfering only where no reasonable tribunal could have reached the conclusion on the evidence. Facts were considered only to establish whether the courts below discharged their legal mandate.

p. 1
02

Whether the conviction for incest was supported and the sentence lawful

Holding

The conviction under the Sexual Offences Act was proper and the 25-year sentence was within the law, so the Court could not interfere.

Reasoning

The evidence established that the appellant was PW1's step-father, that PW1 was 14 years old, and that both doctors confirmed she was defiled by a person she named as the appellant. The proviso to Section 20 of the Sexual Offences Act prescribes life imprisonment where the victim is under 18; the imposed 25-year sentence was therefore lawful and not open to interference on second appeal.

p. 3

Legal principles established

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  • On a second appeal under Section 361(1)(a) Criminal Procedure Code, the Court of Appeal is confined to issues of law and must not interfere with findings of fact of the lower courts unless no reasonable tribunal could have reached that conclusion.
  • Severity of sentence is a matter of fact which a second appellate court cannot deal with unless the sentence is illegal.

Court orders

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  1. 1.Appeal dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
AM
majority

Wrote the judgment

SK
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
HC. CR.A. No. 442 of 2010
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code - second appeal limited to matters of law

Relief refused

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Interference with the 25-year sentence and release of the appellant

Severity of sentence is a matter of fact outside the Court's second-appeal mandate, and the sentence was lawful

p. 3

Costs

No costs order made - this is a criminal appeal and the judgment is silent on costs

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.

Our mandate on a second appeal like this one is limited by Section 361 (1) (a) Criminal Procedure Code to consider only issues of law, if any
p. 1Scope of second appeal - questions of law only
This appeal has no merit and we accordingly dismiss it.
p. 3Final orders - dismissal of appeal
The law does not allow us to deal with the sentence awarded which was within the law.
p. 3Non-interference with lawful sentence

Issues in the judgment

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minor

Duplicate paragraph numbering - two paragraphs numbered '2'.

minor

Judgment signed by only two of three judges; Nambuye, JA retired before delivery.

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, "ENL v Republic", Case Analysis (2022). Criminal Appeal 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/736/eng@2022-07-22

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