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Court of AppealDismissedNot stated in judgment

Sagwe v Republic (Criminal Appeal 69 of 2019) [2025] KECA 154 (KLR)

Court of Appeal of Kenya
7 February 2025
HOHannah OkwenguHOH.A. OmondiJNJoel Ngugi
993 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a lawful sentence on a second appeal, leaving a twenty-year defilement sentence in place.

What this practically means

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Executive summary

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The appellant, Bernard Ondiki Sagwe, was convicted by the Chief Magistrate's Court at Kisii of defilement of a thirteen-year-old girl contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment. The High Court (Majanja, J.) dismissed his first appeal against both conviction and sentence, holding the offence proved and the sentence lawful. On second appeal to the Court of Appeal at Kisumu, the appellant in effect raised a single ground: a plea in mitigation seeking reduction of the sentence or substitution with a non-custodial sentence, citing that he was the sole breadwinner for six children, had served six years, and was a first offender. The respondent, through the DPP, opposed, maintaining that under Section 361 of the Criminal Procedure Code a second appeal lies only on matters of law and severity of sentence is a matter of fact. The Court applied its own decision in Dzombo Mataza vs Republic to reaffirm that on second appeal, matters of fact are for the two lower courts, and that severity of sentence falls outside its Section 361(1)(a) jurisdiction. In any event, it held the twenty-year sentence lawful as the statutory minimum under Section 8(3), citing the Supreme Court's guidance that minimum sentences set the floor, not the ceiling. The appeal was dismissed in its entirety on 7 February 2025. No costs order was made. The decision binds lower courts as to the limits of second appeal jurisdiction over sentence severity.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal on second appeal has jurisdiction to review the severity of a sentence lawfully imposed under Section 8(3) of the Sexual Offences Act
  2. 2.Whether, assuming jurisdiction, the sentence of twenty years imprisonment was lawful

Key legal issues

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01

Scope of second appeal jurisdiction on sentence

Holding

The Court lacks jurisdiction on second appeal to interfere with severity of sentence, which Section 361 identifies as a matter of fact.

Reasoning

Section 361(1)(a) of the Criminal Procedure Code confines second appeals to matters of law. Severity of sentence is expressly identified as a matter of fact, reserved for the trial court and first appellate court. The appellant's grounds were all mitigating circumstances inviting sentence reduction, which fall outside the Court's circumscribed jurisdiction on a second appeal.

p. 2
02

Lawfulness of the twenty-year sentence under Section 8(3) of the Sexual Offences Act

Holding

Even assuming jurisdiction, the appeal would fail because the sentence is the statutory minimum prescribed by Section 8(3) of the Sexual Offences Act.

Reasoning

Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of twenty years imprisonment for defilement of a child aged between twelve and fifteen. The Supreme Court's guidance in the ISLA case confirms that minimum sentences set the floor, not the ceiling, so the sentence imposed was lawful and could not be faulted even if the Court had discretion to review it.

p. 2

Legal principles established

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  • On a second appeal under Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal's jurisdiction is limited to matters of law and excludes severity of sentence, which is a matter of fact.
  • Minimum sentences set the floor rather than the ceiling, leaving courts discretion to impose a harsher sentence, whereas mandatory sentences leave no discretion.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
HO
majority
JN
majority
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal limited to matters of law

Relief refused

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Reduction of the twenty-year imprisonment sentence or substitution with a non-custodial sentence

Second appeal jurisdiction is limited to matters of law and severity of sentence is a matter of fact; moreover the sentence was the statutory minimum under Section 8(3) of the Sexual Offences Act

p. 2

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under Section 361(1)(a) of the Criminal Procedure Code, this Court’s jurisdiction on second appeal is limited to matters of law only, and this excludes severity of sentence which is identified as a matter of fact.
p. 2Second appeal jurisdiction
Unfortunately, this Court does not have jurisdiction to review his sentence given our circumscribed jurisdiction.
p. 2No jurisdiction to reduce sentence on second appeal
Minimum sentence however set the fioor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue leaving it open to the discretion of the court to impose a harsher sentence.
p. 2Minimum vs mandatory sentences
The upshot of the above is that this appeal has no merit. It is accordingly dismissed.
p. 3Final orders / disposition

Issues in the judgment

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minor

The Okeno v Republic citation appears within a quotation from Dzombo Mataza and its treatment cannot be independently ascribed beyond that quote

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sagwe v Republic (Criminal Appeal 69 of 2019) [2025] KECA 154 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/154/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.