Wasike v Republic (Criminal Appeal 201 of 2019) [2024] KECA 325 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a mandatory life sentence for defilement with 30 years and ordered it backdated to the accused's first day in remand.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the mandatory sentence of life imprisonment imposed under section 8(2) of the Sexual Offences Act was excessive, cruel, degrading or unconstitutional
- 2.Whether the Court should interfere with the sentence in a second appeal limited to issues of law
- 3.Whether section 333(2) of the Criminal Procedure Code applies to compute the sentence from the date of first arraignment
Key legal issues
#Interference with sentence on second appeal
Sentence is a matter for the discretion of the trial court; an appellate court interferes only where the sentence is manifestly excessive, a material factor was overlooked, wrong material was taken into account, or a wrong principle was applied
The Court restated the settled position in Benard Kimani Gacheru v Republic. Although severity of sentence is a matter of fact outside a second appeal, both courts below indicated they were constrained by the mandatory minimum sentence, meaning the trial court's discretion was not exercised. That failure of discretion gave this Court jurisdiction to re-examine the sentence.
Constitutionality of indeterminate life imprisonment
Following Evans Nyamari Ayako v R, the indeterminate nature of life imprisonment is unconstitutional and cannot stand as imposed
The appellant, a first offender, argued on the strength of Julius Kitsao Manyeso v Republic that a mandatory indeterminate life sentence was excessive, cruel and degrading. The Court adopted its prior holding in Evans Nyamari Ayako that the indeterminate nature of life imprisonment is unconstitutional, but balanced this against the gravity of defilement of an eight-year-old, warranting a determinate deterrent term of 30 years.
Credit for time spent in custody before conviction
Section 333(2) of the Criminal Procedure Code required the sentence to run from the date of first arraignment and remand
The appellant invoked section 333(2), and the prosecution conceded its application. The Court directed that the substituted 30-year sentence take effect from 27th November 2013, when the appellant was first arraigned and remanded in custody until the conclusion of his case.
Legal principles established
#- The indeterminate nature of a sentence of life imprisonment is unconstitutional
- In a second appeal, severity of sentence being a matter of fact is not open for consideration, the appeal being limited to issues of law
- Where a trial court does not exercise its sentencing discretion because the sentence is mandatory, the appellate court has jurisdiction to re-examine the sentence
Court orders
#- 1.Substitution of the sentence of life imprisonment with 30 years' imprisonment
- 2.The sentence to take effect from 27th November 2013, the date the appellant was first arraigned in court and remanded in custody, pursuant to section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Complete setting aside of the life sentence as sought, in favour of a deterrent sentence
The Court agreed with the prosecution that a deterrent sentence was appropriate given the gravity of the offence against an eight-year-old complainant
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In accordance with this Court's decision in Evans Nyamari Ayako v R (Kisumu Crim. Appeal No. 22 of 2018), the indeterminate nature of the sentence of life imprisonment is unconstitutional and, therefore, we substitute the sentence of life imprisonment to 30 years' imprisonment.
in accordance with section 333(2) of the Criminal Procedure Code the sentence will take efiect from 27th November 2013 when the appellant was fist arraigned in court and remanded in custody as he remained in remand until his case was finalized.
As the trial court did not properly exercise its discretion, this Court has jurisdiction to re-examine the sentence that was imposed on the appellant.
Issues in the judgment
#The appeal number of this second appeal is not stated anywhere in the judgment
The judgment refers to the sentence under section 8(2) for an offence under section 8(1), while the charge was laid under section 8(1) as read with section 8(3); the prescribed sentence is discussed only under section 8(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike v Republic (Criminal Appeal 201 of 2019) [2024] KECA 325 (KLR)", Case Analysis (2024). Criminal Appeal (not fully stated in judgment; second appeal from Kimilili SRM Crim. Case appeal dismissed by High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/325/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.