Makhanu v Republic (Criminal Appeal 47 of 2020) [2025] KECA 219 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 25-year defilement sentence but ordered it counted from the arrest date, not sentencing.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of minimum sentences under the Sexual Offences Act
The minimum sentences are constitutional; the Court is bound by the Supreme Court's decision in Republic v Joshua Gichuki Mwangi under Article 163(7), which overrules earlier Court of Appeal decisions to the contrary
The Supreme Court in Joshua Gichuki Mwangi (2024) definitively determined the issue, distinguishing minimum from mandatory sentences: minimum sentences set the floor, not the ceiling. Under Article 163(7) and the doctrine of stare decisis, that decision binds this Court and overrules recent contrary decisions of this Court. The trial magistrate imposed a sentence above the statutory minimum after weighing aggravating and extenuating factors, so no constitutional breach arose.
Article 50(2)(p) entitlement to the least prescribed punishment
Article 50(2)(p) applies only where the prescribed punishment changed between the offence and sentencing; it has no application here
The appellant misunderstood the constitutional principle. Article 50(2)(p) guarantees the benefit of the least severe prescribed punishment only if the prescribed punishment changed between the time of the offence and the time of sentencing. No such change occurred. Further, the sentencing court properly considered extenuating and aggravating circumstances and concluded the appellant deserved more than the statutory minimum of 20 years.
Whether the 25-year sentence was manifestly excessive
The sentence was a proper exercise of discretion and not manifestly excessive; the appellate court cannot interfere absent a material misdirection
Citing Shadrack Kipkoech Kogo v R and Samuel Warui Karimi v Republic, the Court reiterated that severity of sentence is a matter of fact beyond its second-appeal remit, and interference requires an irrelevant factor, wrong principle, or manifest excess. The magistrate expressly considered that the appellant was a first offender but found him not remorseful and the offence serious. No relevant factor was omitted and no extraneous factor considered.
Section 333(2) Criminal Procedure Code - period in pre-sentence custody
The trial court erred in directing the sentence to run from the date of sentencing; the sentence must be computed from the date of arrest, 14th August 2014
The appellant was arrested on 14th August 2014, as testified by the investigating officer, Corporal Philip Boeni, and remained in custody throughout the trial. The respondent's counsel conceded that section 333(2) required consideration of this period. The Court directed computation of the sentence from the date of arrest; this was the only ground on which the appeal met success.
Legal principles established
#- The minimum sentences in the Sexual Offences Act are constitutional; trial courts have no discretion to impose a sentence below the statutory minimum, and minimum sentences set the floor rather than the ceiling
- Mandatory and minimum sentences are legally distinct concepts in Kenya; a minimum sentence prescribes the least severe sentence a court may issue, leaving discretion to impose a harsher one
- An appellate court may not interfere with sentencing discretion merely because it would have imposed a different sentence; interference requires an error of principle, irrelevant factor, or manifest excess
- Under section 333(2) of the Criminal Procedure Code, a sentence must be computed to include the period an accused spent in custody before sentencing
Court orders
#- 1.The direction that the appellant's sentence of 25 years imprisonment shall be computed to begin on 14th August, 2014, the date of his arrest, in compliance with section 333(2) of the Criminal Procedure Code
- 2.Dismissal of the appellant's appeal in all other respects
- On appeal from
- High Court at Bungoma
- Criminal Appeal No. 189 of 2016
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makhanu v Republic (Criminal Appeal 47 of 2020) [2025] KECA 219 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered in judgment; appeal from High Court Criminal Appeal No. 189 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/219/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.