Alex Riziki Kitunyi v Republic
The bottom line
#Kenya's Court of Appeal kept a 20-year defilement sentence intact but ordered it counted from the date of first remand, crediting pre-conviction custody.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal on sentence in a second appeal
The Court lacks jurisdiction to interfere with a lawful sentence not enhanced on first appeal; the 20-year minimum sentence under section 8(3) of the Sexual Offences Act stands.
Section 361(1)(b) of the Criminal Procedure Code confines second appeals to matters of law and bars sentence appeals unless the trial court lacked jurisdiction or the sentence was enhanced. Sentencing is a discretion of the trial court which an appellate court interferes with only on concrete grounds. The appellant raised no such grounds, and the issue was not a ground of appeal before the High Court, precluding it on second appeal.
Credit for time spent in custody before conviction
The period spent in remand from the date of charge must be factored into computation of the sentence under section 333(2) of the Criminal Procedure Code.
The respondent conceded this ground. The Court found it consistent with the proviso to section 333(2), which allows pre-conviction custody to be taken into account. It directed that the 20-year sentence run from 18th March 2013, the date the appellant was charged and remanded in custody throughout the trial.
Legal principles established
#- On a second appeal the Court of Appeal cannot entertain an appeal against sentence unless the subordinate court had no jurisdiction to pass it or the sentence was enhanced on first appeal.
- An issue not raised at the earliest opportunity and not canvassed before the first appellate court cannot be raised for the first time on second appeal.
- Under section 333(2) of the Criminal Procedure Code the period a convict spends in custody before conviction must be taken into account in computing the sentence.
Court orders
#- 1.Computation of the appellant's sentence of 20 years imprisonment to commence from 18th March 2013, the date he was charged and remanded in custody throughout his trial
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Second appeal under section 361(1)(b) of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Riziki Kitunyi v Republic", Case Analysis (2025). Second Appeal against sentence ( memorandum of appeal on mitigating circumstances). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/240/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.