HKN v Republic (Criminal Appeal E097 of 2023) [2025] KECA 35 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the appeal, confirming that second appeals only address legal errors and cannot introduce new arguments or challenge sentence severity.
What this practically means
#Executive summary
#Key legal issues
#Whether new grounds raised for the first time on second appeal can be determined
The Court declined to consider grounds raised for the first time on second appeal, holding they fall beyond its mandate.
The appellant raised seven grounds concerning fair trial, defective charge, contradictions, voire dire examination and constitutionality of sentence for the first time on second appeal. Relying on Kenya Commercial Bank Ltd v James Osede, Alwi A Saggaf v Abed A Algeredi, Alfayo Gombe Okello v Republic, Sudi Mnalo Mweke v Republic and Wachira v Ndanjeru, the Court held that where the right of appeal is statutory it is confined to points raised before and decided by the trial court, since a party must have fair notice of issues and trial by instalments militates against the discretionary powers of the Court.
Whether the prosecution proved the offence of committing an indecent act with a child beyond reasonable doubt
Concurrent findings of fact by the two courts below were sound; the offence was proved beyond reasonable doubt.
PW1 testified that the appellant placed one hand around her neck and caressed her breasts while she cried for help, corroborated by PW2 and his companions who witnessed the incident and rescued her. The act fell within the definition of an indecent act under section 2 of the Sexual Offences Act. The appellant was well known to PW1, so identity was not in contest, and the evidence established moral certainty of guilt to the standard explained in Miller v Ministry of Pensions.
Whether the sentence of 10 years imprisonment was harsh, excessive or unconstitutional
The Court has no power to reconsider severity of sentence on second appeal; the ground fails.
Section 361(1) of the Criminal Procedure Code provides that severity of sentence is a matter of fact, not law, and therefore not open for consideration on second appeal. Citing MGK v Republic and Oyoko v Republic, the Court held it is not concerned with the severity of sentence in a second appeal unless the sentence is unlawful. The High Court had found the sentence to be the minimum allowed under section 11(1) of the Sexual Offences Act.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law; the Court will not interfere with concurrent findings of fact unless based on no evidence, a perversion of evidence, or conclusions no reasonable tribunal would reach
- Issues not raised at the trial or on first appeal cannot be raised for the first time on second appeal
- On a second appeal, severity of sentence is a matter of fact and not a legal issue open for consideration by the Court of Appeal
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Malindi (S. M. Githinji, J.) delivered on 13th July 2023 is upheld
- On appeal from
- High Court of Kenya at Malindi
- Criminal Appeal No. E027 of 2022
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Godfrey Otieno alias Geofrey v Republic[2026] KECA 1966 (KLR)25 Sept 2026followed
- Kazungu v Republic (Criminal Appeal E017 of 2024) [2026] KECA 1490 (KLR)[2026] KECA 1490 (KLR)24 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "HKN v Republic (Criminal Appeal E097 of 2023) [2025] KECA 35 (KLR)", Case Analysis (2025). Criminal Appeal No. E027 of 2022 (High Court, Malindi); second appeal to the Court of Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/35/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.