Ombiro v Republic (Criminal Appeal 211 of 2019) [2025] KECA 463 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Dennis Ombiro's life-sentence appeal, ruling second appeals cannot challenge sentence severity or raise constitutional arguments for the first time.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal on a second appeal against sentence
The Court lacks jurisdiction to interfere with a lawful sentence on a second appeal where severity of sentence is a matter of fact and the sentence was neither enhanced by the High Court nor beyond the power of the trial court.
Section 361(1)(a) of the Criminal Procedure Code restricts second appeals to matters of law and expressly provides that severity of sentence is a matter of fact. Section 361(1)(b) bars appeals against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to impose it. Neither exception applied, so the life sentence imposed under section 8(2) of the Sexual Offences Act could not be disturbed.
Constitutionality of the mandatory minimum life sentence under section 8(2) of the Sexual Offences Act
The argument was not open to the appellant because he had not challenged the constitutionality of the sentence in the courts below; the Court declined to entertain it.
The appellant argued, relying on Maingi and Manyeso, that the mandatory minimum life sentence was unconstitutional. The Court held it lacked jurisdiction to interfere and further that the issue was raised for the first time on appeal, contrary to the Supreme Court's guidance in Republic v Joshua Gichuki Mwangi, where the constitutionality of section 8 sentences had likewise not been raised in the courts below and the appellant was precluded from raising it on appeal.
Interference with sentences on appeal generally
An appellate court will not interfere with a lawful sentence unless the trial court acted on wrong principles, overlooked material facts, or the sentence is manifestly excessive.
Relying on Bernard Kimani Gacheru v Republic, the Court restated that sentencing is discretionary and depends on the facts of each case. Interference is only warranted where the trial court acted on a wrong principle, took into account wrong material or overlooked a material factor; the appellate court's own preference for a different sentence is insufficient. This principle reinforced the Court's refusal to disturb the sentence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law under section 361(1)(a) of the Criminal Procedure Code; severity of sentence is a matter of fact and no appeal lies against sentence unless it was enhanced by the High Court or the subordinate court had no power to pass it.
- A party who fails to raise the unconstitutionality of a mandatory minimum sentence before the trial court and the High Court is precluded from raising it for the first time on appeal before the Court of Appeal.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of life imprisonment as affirmed by the High Court are upheld
- On appeal from
- High Court of Kenya at Kisii
- Criminal Appeal No. 10 of 2019
- Jurisdiction invoked
- Section 361(1)(a) and (b) 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, "Ombiro v Republic (Criminal Appeal 211 of 2019) [2025] KECA 463 (KLR)", Case Analysis (2025). Criminal Appeal (not otherwise numbered in judgment; arising from Kisii High Court Criminal Appeal No. 10 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/463/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.