Nyongesa v Republic (Criminal Appeal E035 of 2020) [2025] KECA 150 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, ruling you cannot challenge a sentence on a second appeal unless you raised the issue in your first 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 the Court of Appeal has jurisdiction to entertain the appellant's challenge, on a second appeal, to the sentence imposed by the trial court and affirmed by the High Court
- 2.Whether the constitutionality of the mandatory minimum sentence under Section 8(3) of the Sexual Offences Act was preserved as an issue capable of being argued on this second appeal, having not been raised before the first appellate court
- 3.Whether the Court should interfere with the twenty-year sentence imposed by the lower court and affirmed by the superior court
Key legal issues
#Jurisdiction of the Court of Appeal on second appeal against sentence
The Court lacked jurisdiction to disturb the sentence. Section 361(1)(b) of the Criminal Procedure Code bars entertaining an appeal against sentence on second appeal unless the trial court lacked jurisdiction or the sentence was enhanced on first appeal, and neither occurred here.
The Court invoked section 361(1)(b) of the Criminal Procedure Code, noting that sentencing is an exercise of judicial discretion by the trial court and an appellate court must not substitute its own views absent concrete grounds. It restated the Supreme Court's guidance in Republic vs. Mwangi (ISLA, Amicus Curiae) that the Court of Appeal's jurisdiction on second appeals is confined to matters of law, and that a complaint that a sentence was harsh and excessive falls outside that purview.
Failure to raise the constitutionality of minimum sentences before the first appellate court
The constitutional challenge to the mandatory minimum sentence was not preserved. The appellant's first appeal, though nominally against conviction and sentence, raised no grounds against the sentence, so the issue cannot be entertained on second appeal.
Although the appellant argued before the Court of Appeal that the mandatory sentence violated his constitutional rights, the Court found that no grounds against the sentence had been raised in the High Court appeal. Relying on Alfayo Gombe Okello vs. Republic and its own decisions in Nyaranga & 5 Others and PW vs. Republic, it held that an issue not raised at the earliest opportunity cannot be raised for the first time in a second appeal, and that addressing it would deprive the Court of the High Court's opinion.
Validity of the statutory minimum sentence under Section 8(3) of the Sexual Offences Act
The twenty-year sentence was lawful, being the mandatory minimum prescribed by Section 8(3) of the Sexual Offences Act for a child aged between twelve and fifteen years, which remains valid absent a declaration of unconstitutionality.
The Court quoted the Supreme Court's decision in Republic vs. Joshua Gichuki Mwangi reiterating that although sentencing is a judicial discretion, it is Parliament that sets the parameters of sentencing in statute; a statutory sentence remains lawful unless declared unconstitutional on sound principles and clear guidelines. Applying that to the facts, the victim was aged 12 and the sentence of twenty years was the lawful minimum.
Legal principles established
#- On a second appeal, section 361(1)(b) of the Criminal Procedure Code bars the Court of Appeal from entertaining an appeal against sentence unless the subordinate court had no jurisdiction to pass the sentence or the sentence was enhanced by the first appellate court.
- An appellate court will not interfere with a sentence imposed by the trial court unless it is demonstrated that the trial court acted on wrong principles or overlooked material facts.
- A constitutional challenge to a mandatory minimum sentence must be raised at the earliest opportunity, including before the first appellate court; an issue not raised there cannot be argued for the first time on a second appeal.
- Sentencing parameters are set by Parliament; a statutory sentence remains lawful unless and until it is declared unconstitutional on sound principles and clear guidelines.
Court orders
#- 1.The appeal against sentence is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Bungoma
- Jurisdiction invoked
- Second appeal against sentence under section 361(1)(b) of the Criminal Procedure Code, which bars appellate interference with sentence unless the subordinate court had no jurisdiction or the sentence was enhanced on first appeal
Relief refused
#Declaration that the mandatory minimum sentence under Section 8(3) of the Sexual Offences Act is unconstitutional
The issue was not raised in the first appeal before the High Court and was therefore not preserved for determination on second appeal
Reduction of or leniency in the twenty-year sentence
Section 361(1)(b) of the Criminal Procedure Code bars a second appeal against sentence, and the sentence was lawful, being the mandatory minimum provided by statute
Costs
No costs order is recorded in the judgment (criminal appeal; no order as to costs made)
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 issue of constitutionality of the minimum sentence having not been raised before the first appellate court, it follows that it cannot fall for determination in this appeal. Ultimately, the appeal lacks merit and is dismissed.
This being a second appeal, section 361 (1) (b) of the Criminal Procedure Code bars the Court from entertaining appeals against sentence unless the subordinate court had no jurisdiction to pass the sentence or the sentence was enhanced by the first appellate court.
Sentencing is a discretionary power exercised by the trial court. An appellate court will not necessarily interfere with the sentence meted out unless it is demonstrated that the trial court acted on some wrong principles or overlooked some material facts.
The constitutionality of minimum sentences under the Sexual Offences Act was, therefore, not preserved as an issue that could be argued before this Court.
In any case, the sentence imposed by the trial court against the Respondent and afirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Republic (Criminal Appeal E035 of 2020) [2025] KECA 150 (KLR)", Case Analysis (2025). Criminal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/150/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.