Nyarigoti v Republic (Criminal Appeal 271 of 2019) [2025] KECA 156 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming courts can increase sentences on appeal if the appellant was warned of that risk beforehand.
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 High Court could enhance the sentence on appeal without a written notice of intention to enhance by the DPP or a cross-appeal, and without ambush of the appellant
- 2.Whether the mandatory minimum sentence under section 8(2) of the Sexual Offences Act is unconstitutional
- 3.Whether a life imprisonment sentence, being indefinite and indeterminate, is unconstitutional and violates the right to dignity
Key legal issues
#Enhancement of sentence without written notice or cross-appeal
Enhancement was proper because the appellant was substantively warned twice, on record, of the risk before insisting on proceeding
The record showed the prosecution counsel warned the appellant that enhancement to life imprisonment would be sought if he pursued the appeal, and the judge repeated the caution twice. The appellant explicitly insisted on proceeding. Written notice by the DPP is best practice but not a rigidly talismanic rule; the substantive requirement is that the appellant be informed of the risk, which was satisfied.
Constitutionality of the sentence under section 8(2) of the Sexual Offences Act
The life imprisonment penalty under section 8(2) is lawful; trial and appellate courts have no discretion to go below statutory minimums in sexual offences
The jurisprudence impugning minimum sentences in the Sexual Offences Act on separation-of-powers grounds was settled by the Supreme Court in Republic v Joshua Gichuki Mwangi, which is binding on this Court. That decision held minimum sentences are not unconstitutional, distinguishing Muruatetu as confined to the mandatory death sentence for murder under section 204 of the Penal Code.
Indeterminacy of life imprisonment
The Court has no jurisdiction to consider the constitutional challenge because the issue was not preserved by being raised at the High Court
Following the Supreme Court's direction in Joshua Gichuki Mwangi, questions not raised on first appeal at the High Court cannot be entertained for the first time on second appeal. The appellant never litigated the indeterminacy of his life sentence before the High Court, so the Court of Appeal is bereft of jurisdiction despite prior Court of Appeal decisions in Manyeso and Ayaka.
Legal principles established
#- On a second appeal, the Court of Appeal's mandate is limited to matters of law only, and it can only interfere with sentence on a material misdirection
- The requirement that the DPP issue written notice of intent to seek enhancement of sentence is best practice but not a rigid rule; what is required is that the appellant be substantively informed of the risk of proceeding with the appeal
- The mandatory minimum sentences in the Sexual Offences Act are constitutional and trial courts have no discretion to go below the statutory minimum, per the Supreme Court in Republic v Joshua Gichuki Mwangi
- The Court of Appeal lacks jurisdiction to entertain a constitutional challenge to a sentence that was not first raised on appeal at the High Court
Court orders
#- 1.The appeal against sentence is dismissed in its entirety
- 2.The sentence of life imprisonment imposed by the High Court stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- Second appeal under section 361(1) of the Criminal Procedure Code (matters of law only)
Relief refused
#Setting aside the enhanced life imprisonment sentence
The appellant was twice warned of the risk of enhancement and insisted on proceeding; the Supreme Court in Joshua Gichuki Mwangi upheld the constitutionality of minimum sentences under the Sexual Offences Act
A declaration that the indeterminate life sentence is unconstitutional
The issue was not raised at the High Court on first appeal, so this Court lacks jurisdiction to entertain it
Costs
No costs order was 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 result is that the appeal fails in its entirety. We hereby dismiss it.
In these circumstances, the appellant cannot be heard to complain that the enhancement of sentence was an ambush on him.
that jurisprudential trajectory was snufied out by a recent binding decision of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024).
We are, consequently, bereft of jurisdiction to consider it.
Issues in the judgment
#The Supreme Court decision is referred to inconsistently as both 'Joshua Gichuki Mwangi' and 'Joseph Gichuki Mwangi' within the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyarigoti v Republic (Criminal Appeal 271 of 2019) [2025] KECA 156 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/156/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.