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Court of AppealPartially AllowedCriminal Appeal (as extracted from Bungoma High Court Crim. App. No. 235 of 2016)

Karani v Republic (Criminal Appeal 249 of 2019) [2024] KECA 299 (KLR)

Court of Appeal of Kenya
15 March 2024
HOHannah OkwenguJMJ. MativoJNJoel Ngugi
968 words in judgment
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The bottom line

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The Court of Appeal kept a 20-year defilement sentence but ordered that time the appellant spent in custody during trial be counted towards it.

What this practically means

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Executive summary

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This is a second appeal against sentence only by Edwin Wabomba Karani, convicted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment, with the conviction and sentence affirmed by the Bungoma High Court (Achode, J.). The Court of Appeal (Okwengu, Mativo and Ngugi, JJA) at Kakamega identified two issues: the constitutionality of the mandatory minimum sentence, and credit for time spent in custody during trial. On the first, the court acknowledged the shift in jurisprudence - exemplified by Maingi and Edwin Wachira - declaring mandatory minimum sentences under the Sexual Offences Act unconstitutional to the extent they strip sentencing courts of discretion, and held that a failure to exercise such discretion raises a matter of law cognisable on second appeal under section 361(a) of the Criminal Procedure Code. The State conceded discretion was not exercised but maintained the sentence matched the offence's gravity. The court agreed: given the victim's tender age, his known epilepsy which the appellant exploited, and the brute force used, the twenty-year sentence was deserved. On the second ground, which the State did not oppose, the court applied section 333(2) of the Criminal Procedure Code, ordering that the period in custody from 9th July 2015 to 23rd November 2015 count as part of the sentence, with the sentence computed to begin on 15th April 2016. The appeal was otherwise dismissed.

Questions the Court framed

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

  1. 1.Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional for denying sentencing courts discretion
  2. 2.Whether the period spent in custody during trial should be discounted from the sentence under section 333(2) of the Criminal Procedure Code

Key legal issues

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01

Constitutionality of mandatory minimum sentences under the Sexual Offences Act

Holding

The court acknowledged the jurisprudential shift declaring such mandatory minimums unconstitutional, but found that in this case the sentence of 20 years was deserved on the facts

Reasoning

The court accepted the appellant's argument that a failure to exercise sentencing discretion is a question of law open on second appeal, and the State conceded discretion was not exercised. However, the aggravating factors - the victim's tender age, known epilepsy, and the brutality of the assault - meant an individualised sentence would have been the same, so the sentence stood.

p. 2
02

Credit for time spent in custody during trial

Holding

The appellant succeeded; custody periods must be counted as part of the sentence under section 333(2) of the Criminal Procedure Code

Reasoning

The record showed the appellant was in custody from arraignment on 9th July 2015 until release on bond on 23rd November 2015, and remanded again on 15th April 2016. The court ordered those periods discounted, with the sentence computed to begin on 15th April 2016. The State did not oppose this ground.

p. 2

Legal principles established

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  • Mandatory minimum sentences in the Sexual Offences Act that deprive sentencing courts of discretion are unconstitutional
  • Failure of a sentencing court to exercise discretion is a matter of law properly before the second appellate court
  • Periods spent in custody during trial must be discounted from the sentence under section 333(2) of the Criminal Procedure Code

Court orders

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  1. 1.The period between 9th July 2015 and 23rd November 2015 shall be counted as part of the appellant's sentence
  2. 2.The appellant's sentence shall be computed to begin on 15th April 2016
  3. 3.The appeal is otherwise dismissed

The bench

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

HO
majority
JM
majority
JN
majority
On appeal from
High Court of Kenya at Bungoma
Crim. App. No. 235 of 2016
Jurisdiction invoked
Second appeal under Section 361(a) of the Criminal Procedure Code (matters of law only)

Relief refused

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Reduction or setting aside of the 20-year sentence on the ground of unconstitutionality of mandatory minimum sentences

The sentence was deserved and commensurate with the gravity of the offence given aggravating factors

p. 2

Costs

No costs order was made in the judgment

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.

the failure of a sentencing court to exercise discretion is a matter of law properly before this Court on second appeal
p. 2Jurisdiction of second appellate court over sentencing discretion
By dint of section 333(2) of the Criminal Procedure Code, these periods should be discounted from his sentence
p. 2Credit for pre-trial custody
the twenty (20) years imprisonment sentence is deserved and is commensurate with the gravity of the ofience
p. 2Sentence upheld on merits
the period between 9th July, 2015 and 23rd November, 2015 shall be counted as part of his sentence while his sentence shall be computed to begin on 15th April, 2016
Final orders

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, "Karani v Republic (Criminal Appeal 249 of 2019) [2024] KECA 299 (KLR)", Case Analysis (2024). Criminal Appeal (as extracted from Bungoma High Court Crim. App. No. 235 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/299/eng@2024-03-15

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