Yegon v Republic (Criminal Appeal E015 of 2022) [2025] KECA 857 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a judge's decision to increase a man's sentence from 10 to 15 years because he was never warned it might happen.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over an enhanced sentence
The bar in section 361(1) of the Criminal Procedure Code on hearing matters of fact, including severity of sentence, does not apply where the sentence has been enhanced by the High Court; the Court of Appeal may then interrogate the enhanced sentence.
Section 361(1) bars second appellate courts from determining questions of fact, including the severity of sentence, but the Supreme Court in Republic v Mwangi clarified an exception: the bar does not apply to a sentence that the High Court has itself enhanced. Since the appellant's sentence was enhanced from 10 to 15 years by Ongeri, J, this Court had jurisdiction to review the enhancement notwithstanding that severity of sentence is ordinarily a matter of fact.
Duty to warn before suo motu enhancement of sentence
A High Court must warn an appellant before enhancing a sentence; enhancement without notice, without a prosecution cross-appeal seeking enhancement, and without hearing the appellant is an error of law that invalidates the enhanced sentence.
The Court relied on its prior decisions holding that although warning is not strictly a statutory requirement, it is standard practice of notoriety that puts the appellant on notice of the risk of enhancement, ordinarily conveyed by a prosecution cross-appeal served in good time or by a judicial warning. On the record there was no indication the Judge was addressed on enhancement and the appellant, who was prejudiced, was never afforded an opportunity to be heard, breaching the fair-hearing principle.
Legal principles established
#- Where a High Court hearing a first appeal enhances a sentence in the absence of an appeal against sentence or a cross-appeal by the prosecution seeking enhancement, it must first warn or caution the appellant; enhancement without such notice is improper and will be set aside.
- The Court of Appeal has jurisdiction to interrogate a sentence where the same has been enhanced by the High Court, notwithstanding the general bar in section 361(1) of the Criminal Procedure Code on matters of fact.
Court orders
#- 1.The 15-year sentence imposed by the High Court is set aside
- 2.The 10-year sentence imposed by the trial court is reinstated
- On appeal from
- High Court of Kenya at Kericho
- Criminal Appeal No. 35 of 2019
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code, which permits the Court of Appeal to interrogate a sentence that has been enhanced by the High Court, and section 354(3) on enhancement powers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yegon v Republic (Criminal Appeal E015 of 2022) [2025] KECA 857 (KLR)", Case Analysis (2025). Criminal Appeal (not otherwise numbered in judgment; arising from Kericho Criminal Appeal No. 35 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/857/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.