Murunga v Republic (Criminal Appeal 192 of 2019) [2024] KECA 1684 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the 20-year mandatory minimum sentence for defilement remains lawful and binding.
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 sentence of 20 years imprisonment meted out against the appellant was harsh and excessive or otherwise unlawful
- 2.Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional
Key legal issues
#Scope of the Court of Appeal's jurisdiction in a second appeal
The Court's mandate is limited by section 361(1)(a) of the Criminal Procedure Code to issues of law only, unless the two courts below considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
The court restated the established second-appeal principle from Karani v R: interference with concurrent findings is permissible only where an omission or commission amounts to a matter of law. The appellant attacked sentence only, so the court confined itself to the lawfulness of the sentence rather than re-evaluating facts.
Constitutionality of the mandatory minimum sentence under section 8(3) of the Sexual Offences Act
The minimum mandatory sentence of 20 years for defilement of a child aged between twelve and fifteen years is lawful; Muruatetu did not address minimum sentences, and their validity must be challenged in a properly argued case escalated through the appropriate channels.
Relying on the Supreme Court's decision in Republic v Mwangi (ISLA as amicus), the court held that Muruatetu concerned only the mandatory death sentence for murder and left minimum sentences intact. Absent a proper constitutional challenge escalated through the correct channels, the statutory minimum binds the court.
Interference with lawful sentences on appeal
An appellate court should not interfere with a lawful sentence, nor with the exercise of sentencing discretion, unless the trial court failed to consider relevant matters, considered irrelevant matters, or was plainly wrong.
Citing Francis Nkunja Tharamba v Republic, the court held sentencing is a discretionary act of the trial court subject to appellate review only on established grounds. Nothing was laid before the court to show the trial court failed to properly exercise its discretion or that the first appellate court wrongly declined to intervene.
Legal principles established
#- In a second appeal the Court of Appeal is confined to matters of law under section 361 of the Criminal Procedure Code and cannot interfere with concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
- Where the sentence imposed is the lawful minimum provided by statute, an appellate court should not interfere absent demonstration that the sentencing discretion was improperly exercised; and following the Supreme Court's decision in Republic v Mwangi, minimum mandatory sentences under the Sexual Offences Act remain lawful and binding on courts below.
Court orders
#- 1.The appeal against sentence is dismissed in its entirety
- 2.The sentence of 20 years imprisonment imposed by the trial court and affirmed by the first appellate court remains in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code - second appeal on matters of law only, including appeal against sentence
Relief refused
#Substitution of the 20-year sentence with a lesser sentence on grounds of rehabilitation and time served
The sentence was the lawful minimum mandatory sentence under section 8(3) of the Sexual Offences Act; nothing was shown that the trial court failed to properly exercise its sentencing discretion
Declaration that the mandatory minimum sentence is unconstitutional
The Supreme Court in Republic v Mwangi affirmed the lawfulness of minimum mandatory sentences under the Sexual Offences Act and directed that a proper case be filed and escalated through the appropriate channels before courts can depart from them
Costs
No order as to costs is recorded 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.
The upshot is that the appeal has no merit; and is dismissed.
This being a second appeal, this Court's mandate is limited by section 361(1)(a) of the Criminal Procedure Code to consider issues of law only
when the sentence is lawful, the appellate court should not interfere.
it is evident that the sentence imposed by the trial court against the appellant and afirmed by the first appellate court was lawful, and in accordance with the provisions of Section 8(1) as read with 8(3) of the Sexual Offences Act.
Issues in the judgment
#Internal inconsistency in the pleaded relief: paragraph 4 states the appellant was sentenced to twenty years imprisonment yet asserts he 'prays that the life imprisonment be substituted with a lesser sentence', referring to a sentence of life imprisonment that was not imposed.
The judgment contains no costs order and no formal 'Orders' section beyond the dismissal; the record ends with the certification of a true copy rather than drawn final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murunga v Republic (Criminal Appeal 192 of 2019) [2024] KECA 1684 (KLR)", Case Analysis (2024). Criminal Appeal (not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1684/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.