Isiongo v Republic (Criminal Appeal 140 of 2019) [2025] KECA 407 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence but ordered 16 days of pre-trial custody deducted, confirming courts must count remand time.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to consider the sentence appeal
The Court had jurisdiction because the issue of sentence was raised and canvassed in the High Court, contrary to the respondent's submission.
The respondent, relying on Republic v. Mwangi (ISI-A), argued the sentence issue was being improperly introduced at second appeal since a second appeal is confined to matters of law. The Court found as a fact that sentence had been raised before the High Court, and therefore it could interrogate it. This disposed of the jurisdictional objection without needing to resolve the broader rule on new issues.
Legality of the 20-year sentence
The 20-year sentence was the minimum prescribed for defilement of a child aged 16-18 (aged 15, main count under section 8 of the Sexual Offences Act) and was lawful; the Court would not disturb it.
Applying Bernard Kimani Gacheru and Joseph Mureithi Kanyita, an appellate court does not interfere with sentence absent misdirection or manifest excess. The sentence imposed was the minimum prescribed by statute and thus the only one available; the Supreme Court in Republic v. Mwangi had affirmed the constitutionality of mandatory minimum sentences under the Sexual Offences Act. The appellant's mitigation and rehabilitation did not warrant interference.
Compliance with section 333(2) of the Criminal Procedure Code
The trial court failed to take into account the 16 days the appellant spent in custody between arrest on 12th December 2015 and release on bond on 28th December 2015; the sentence is upheld but that period must be deducted.
Section 333(2) mandatorily requires that time spent in custody before sentence be counted. Relying on Ahamad Abolfathi Mohammed and Bethwel Wilson Kibor, and the Judiciary Sentencing Policy Guidelines, the Court held that taking into account means proportionate reduction of the sentence. The respondent conceded this ground. The Court computed 16 days in custody and directed their deduction.
Legal principles established
#- An appellate court will not interfere with a lawful sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
- Section 333(2) of the Criminal Procedure Code obliges sentencing courts to take into account, meaning proportionately deduct, the period an accused spent in custody before sentencing; merely stating that the period is taken into account while ordering the sentence to run from conviction is non-compliance.
- Mandatory minimum sentences under the Sexual Offences Act are lawful, per the Supreme Court's decision in Republic v. Mwangi (ISI-A).
Court orders
#- 1.Upheld the sentence of 20 years imprisonment
- 2.Directed that the 16 days spent in custody from the date of arrest until release on bond be deducted from the period of imprisonment
- 3.Appeal on sentence allowed only to that limited extent
- On appeal from
- High Court of Kenya at Siaya
- Criminal Appeal No. 78 of 2016
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to sentence; no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isiongo v Republic (Criminal Appeal 140 of 2019) [2025] KECA 407 (KLR)", Case Analysis (2025). Criminal Appeal (not expressly numbered in judgment; appeal from Siaya High Court Criminal Appeal No. 78 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/407/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.