Mikokho v Republic (Criminal Appeal E032 of 2020) [2025] KECA 205 (KLR)
The bottom line
#Kenya's Court of Appeal cut years off a 20-year defilement sentence by counting time already spent in custody, but refused to touch the mandatory minimum itself.
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 should interfere with the sentence of 20 years imprisonment imposed by the trial court and affirmed by the High Court
- 2.Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional
- 3.Whether the appellant is entitled to have the period spent in custody before sentencing taken into account under section 333(2) of the Criminal Procedure Code
Key legal issues
#Scope of second-appeal jurisdiction over sentence
Severity of sentence is a matter of fact; the Court of Appeal on a second appeal cannot interfere with sentence save within the exceptions in section 361(1)(b) of the CPC, none of which applied.
Section 361(1)(a) restricts second appeals to matters of law, and section 361(1)(b) bars appeals against sentence unless the sentence was enhanced by the High Court or the trial court lacked power to impose it. The 20-year term was the lawful minimum under section 8(3) of the Sexual Offences Act, so the complaint of harshness fell outside the Court's jurisdiction.
Raising a constitutional challenge to a mandatory sentence for the first time on second appeal
An appellant is precluded from raising a new ground, including unconstitutionality of the sentence, at second appellate stage if it was not raised before the High Court.
A perusal of the grounds of appeal before the High Court showed no challenge to the sentence or its constitutionality. Following PW v Republic and the Supreme Court in Republic v Mwangi (ISLA), the issue having not been raised before the first appellate court cannot fall for determination in this appeal.
Credit for time spent in custody under section 333(2) CPC
The appellant is entitled to have the period spent in custody while awaiting trial considered in computing his sentence; computation begins from his first court appearance on 7th April 2014.
The respondent conceded that the period in custody should be considered. The Court held that under section 333(2) of the Criminal Procedure Code the appellant is entitled to that credit, and directed that computation of the sentence run from 7th April 2014, the date he first appeared in court, while otherwise leaving the sentence undisturbed.
Legal principles established
#- A new ground, including a constitutional challenge to a sentence, cannot be raised for the first time on a second appeal where it was not raised or determined by the first appellate court.
- An accused is entitled, under section 333(2) of the Criminal Procedure Code, to have the period spent in custody before sentencing taken into account in computing sentence.
- On a second appeal the Court of Appeal is confined to matters of law and may not hear an appeal against sentence except where the sentence was enhanced by the High Court or the trial court had no power to pass it.
Court orders
#- 1.The sentence imposed on the appellant shall remain undisturbed
- 2.Computation of the sentence shall begin 7th April 2014, the date the appellant first appeared in court, per section 333(2) of the Criminal Procedure Code
- 3.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1)(a) and (b) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Interference with the 20-year mandatory minimum sentence and a declaration that it is unconstitutional
The constitutional challenge was raised for the first time in this Court, having not been raised before the High Court, and the sentence was lawful; severity of sentence is a matter of fact outside second-appeal jurisdiction
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.
In the premise and guided by the holding in the Supreme Court decision cited above, the sentence imposed on the appellant shall remain undisturbed
we hold that under section 333(2) of the Criminal Procedure Code the appellant is indeed entitled to have that period considered in computing sentence, and we therefore direct that computation of the sentence shall begin 7th of April 2014 which is the date he first appeared in court
Accordingly, the appeal lacks merit and is dismissed.
he is precluded from raising new grounds at this second appellate stage
Issues in the judgment
#No case number or neutral citation for this appeal appears anywhere in the judgment supplied; the caseNumber and neutralCitation fields are left blank.
No costs order is made in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mikokho v Republic (Criminal Appeal E032 of 2020) [2025] KECA 205 (KLR)", Case Analysis (2025). Criminal Appeal (not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/205/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.