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Court of AppealDismissedCriminal Appeal (unnumbered in judgment as provided)· [2025] KECA 982 (KLR)

Omollo v Republic (Criminal Appeal 60 of 2020) [2025] KECA 982 (KLR)

Court of Appeal of Kenya
30 May 2025
2,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce mandatory sexual offences sentences, so the appellant's 75-year prison term stands.

What this practically means

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Executive summary

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The appellant, Joseph Owino Omolo, was convicted by the Principal Magistrate's Court at Siaya of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. The High Court dismissed his appeal against conviction but allowed the appeal on sentence, setting aside life imprisonment and substituting a term of 75 years. On second appeal, the appellant challenged only the 75-year sentence as manifestly excessive, citing average life expectancy, his youth at the time of the offence, and his claimed rehabilitation. The respondent, while acknowledging the dilemma created by the Court of Appeal's earlier decision in Evans Nyamari Ayako equating life imprisonment with 30 years, urged the Court to defer to the Supreme Court's decision in Republic v Mwangi (ISLA), upholding the validity of mandatory sentences under the Sexual Offences Act. The Court of Appeal, presided over by Makhandia, Omondi and Kimaru JJA, held that it was bound by the Supreme Court's decisions in Mwangi and R v Evans Nyamari Ayako, the latter having set aside the Court of Appeal's substitution of life imprisonment with 30 years and restored life imprisonment as a valid and lawful sentence representing the natural span of an individual's life rather than a computation of years. The Court found it had no jurisdiction to interfere with the sentence and dismissed the appeal.

Key legal issues

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01

Whether the Court of Appeal may reduce a sentence under the mandatory provisions of the Sexual Offences Act following the Supreme Court's jurisprudence

Holding

The Court of Appeal has no jurisdiction to interfere with a sentence under section 8 of the Sexual Offences Act where it was imposed by the trial court and affirmed on first appeal, as the Supreme Court has upheld the validity of mandatory minimum sentences including life imprisonment

Reasoning

The Court relied on the Supreme Court's decision in Republic v Mwangi; ISLA (Amicus Curiae), which held that mandatory minimum sentences under the Sexual Offences Act do not violate Articles 25, 27, 28, 50 or judicial independence under Article 160, and that any sentence imposed at trial and affirmed on first appeal remains lawful while section 8 stands. The Court also relied on R v Evans Nyamari Ayako, in which the Supreme Court set aside the Court of Appeal's equation of life imprisonment with 30 years, holding that Parliament, not the Judiciary, sets sentencing parameters. Accordingly, the Court declined to interfere with the sentence.

p. 4
02

The scope of a second appeal

Holding

A second appeal is confined to points of law; the Court will not interfere with concurrent factual findings unless they are based on no evidence, a misapprehension of the evidence, or wrong principles

Reasoning

The Court restated the settled test for second appeals, citing Karingo & 2 Others v Republic [1982] eKLR: the question is whether there was any evidence on which the trial court could find as it did. On this appeal, however, the challenge related only to sentence, so the factual findings of the courts below were not in issue.

p. 1

Legal principles established

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  • A second appeal is confined to points of law, and the Court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence or made on wrong principles
  • Following the Supreme Court's decisions in Republic v Mwangi (ISLA) and R v Evans Nyamari Ayako, the Court of Appeal has no jurisdiction to interfere with sentences imposed under the mandatory provisions of the Sexual Offences Act, including life imprisonment, which is valid and lawful and not reducible to a fixed term of years

Court orders

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  1. 1.The appellant's appeal against sentence is dismissed in its entirety
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal to the Court of Appeal confined to points of law under the Court of Appeal's appellate jurisdiction; no specific constitutional/statutory provision cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omollo v Republic (Criminal Appeal 60 of 2020) [2025] KECA 982 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered in judgment as provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/982/eng@2025-05-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.