Okinda v Republic (Criminal Appeal E022 of 2020) [2025] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an appeal against a mandatory life sentence, ruling constitutional challenges cannot be raised for the first time on second appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the grounds upon which the appellant challenges the sentence imposed upon him, including a constitutional challenge raised for the first time on second appeal
- 2.Whether there is justification for this Court to interfere with the sentence imposed on the appellant
Key legal issues
#Jurisdiction to entertain constitutional challenges to sentence raised for the first time on second appeal
The Court lacks jurisdiction to entertain such issues where they were not raised in the High Court, following the Supreme Court's decision in Republic v Mwangi.
The respondent correctly submitted that a constitutional issue not raised in the High Court cannot be escalated to the Court of Appeal, since only the High Court has jurisdiction under Articles 165(3)(b) and 165(3)(d)(i) to determine questions of violation of Bill of Rights freedoms. Relying on Republic v Mwangi, where the Supreme Court held that a respondent who failed to raise the constitutionality of a mandatory minimum sentence before the High Court was precluded from doing so in the Court of Appeal, this Court held the appellant similarly precluded.
Whether the mandatory life sentence under section 8(2) of the Sexual Offences Act is lawful and whether the Court should interfere
The sentence of life imprisonment imposed under section 8(2) is neither illegal nor unconstitutional, and the Court will not interfere with a lawful sentence absent wrong principles or overlooked material facts.
Sentencing is a discretionary exercise, but appellate interference is limited to cases where the trial court acted on wrong principles, overlooked material facts, or where the sentence is manifestly excessive. The Supreme Court in Republic v Mwangi affirmed that Parliament sets sentencing parameters and that a statutory sentence remains lawful so long as the statutory provision remains valid. Section 8(2) remains valid, so the appellant's life sentence, being on all fours with Republic v Mwangi, stands.
Legal principles established
#- On a second appeal, the Court of Appeal is restricted to matters of law only and cannot entertain a constitutional challenge to a sentence raised for the first time in the second appellate court.
- Where the mandatory minimum sentence under a valid section 8(2) of the Sexual Offences Act is imposed, an appellate court has no justification to interfere with the life sentence.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- not stated
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confined to matters of law only
Relief refused
#Interference with the mandatory life imprisonment sentence under section 8(2) of the Sexual Offences Act
The sentence is lawful; the constitutional challenge was raised for the first time in this Court and could not be entertained on second appeal
Costs
No costs order 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.
The upshot of the above is that this appeal fails as the Court has no jurisdiction to entertain the grounds upon which the appellant is challenging the sentence.
The appeal is accordingly dismissed.
it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute.
Where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed finding of fact and law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okinda v Republic (Criminal Appeal E022 of 2020) [2025] KECA 3 (KLR)", Case Analysis (2025). Criminal Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/3/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.