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Court of AppealDismissedNot stated in the judgment

Okwakau v Republic (Criminal Appeal 63 of 2019) [2025] KECA 1076 (KLR)

Court of Appeal of Kenya
20 June 2025
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming it cannot reduce sentences or hear new constitutional arguments on second appeals.

What this practically means

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Executive summary

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The appellant, Oliver Omusugu Okwakau, was convicted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment. His first appeal to the High Court failed, and he appealed to the Court of Appeal at Nakuru, challenging primarily the constitutionality of the minimum mandatory sentences under the Sexual Offences Act and, alternatively, seeking consideration of his mitigation, rehabilitation and time already spent in custody. The Court of Appeal, comprising Mativo, Gachoka and Korir, JJ A, in a single judgment of the court, dismissed the appeal in its entirety. It held that the constitutional challenge to mandatory minimum sentences could not be entertained because it was raised for the first time on second appeal, having never been raised before the trial court or the High Court; a party who omits the issue below is precluded from raising it on further appeal. The court further noted that the Supreme Court has recently reaffirmed the constitutionality of sentences under the Sexual Offences Act. On sentence severity, the court restated the limits in section 361(1) of the Criminal Procedure Code as framed by the Supreme Court in Republic v Mwangi (ISLA, Amicus Curiae): on a second appeal the Court of Appeal is confined to matters of law and barred from determining questions relating to sentences except where the sentence was enhanced by the High Court or the trial court lacked jurisdiction. Neither exception applied, so the mitigation and rehabilitation grounds were declined. The High Court's dismissal of the first appeal was affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the minimum mandatory sentences under the Sexual Offences Act are unconstitutional - a ground raised for the first time on second appeal
  2. 2.Whether the Court of Appeal on second appeal may consider the appellant's mitigation, rehabilitation and time spent in custody to reduce the sentence

Key legal issues

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Jurisdiction of the Court of Appeal on second appeals as to sentence

Holding

The Court of Appeal's jurisdiction on second appeals is confined to matters of law; severity of sentence is a matter of fact and cannot be interfered with unless the sentence was enhanced by the High Court or was passed without jurisdiction.

Reasoning

Relying on the Supreme Court's decision in Republic v Mwangi (ISLA Amicus Curiae), the court restated that section 361(1) of the Criminal Procedure Code bars the Court of Appeal from hearing matters of fact, including severity of sentence, except where the sentence was enhanced by the High Court. The appellant's grounds on mitigation, rehabilitation and time served were, in substance, an invitation into the arena of sentence severity, outside the Court's remit, and were declined.

p. 3
02

Constitutionality of minimum mandatory sentences under the Sexual Offences Act raised for the first time on second appeal

Holding

The Court declined to determine the constitutionality of the mandatory minimum sentences because the issue was raised for the first time before it, not having been raised before the trial court or the High Court.

Reasoning

The court observed that although the appellant fervently challenged the constitutionality of the section 8(3) minimum mandatory sentence, that ground was never raised in the courts below. Quoting the Supreme Court in Republic v Mwangi, it held that a party who fails to raise the constitutionality of a mandatory minimum sentence before the High Court is precluded from addressing it on a further appeal. The court also noted that the Supreme Court has recently reaffirmed the constitutionality of sentences under the Sexual Offences Act.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is barred from determining questions relating to the severity of sentence, except where the sentence was enhanced by the High Court or the trial court had no jurisdiction to pass the sentence.
  • A party cannot raise the constitutionality of a sentence for the first time on second appeal where it was never raised before the trial court or the first appellate court.

Court orders

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  1. 1.Appeal dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal limited to matters of law

Relief refused

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Declaration that minimum mandatory sentences under the Sexual Offences Act are unconstitutional

The issue was raised for the first time on second appeal and was not raised before the trial court or the first appellate court, so the Court lacks jurisdiction to entertain it.

p. 3

Review and reduction of the 20-year sentence to reflect mitigation, rehabilitation and time served, potentially to a non-custodial sentence

On a second appeal the Court is barred from determining questions relating to the severity of sentence except where the sentence was enhanced by the High Court or the trial court had no jurisdiction to pass it.

p. 3

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, we find this appeal lacks merit and dismiss it in its entirety.
p. 3Disposition - appeal dismissed
On a second appeal, we are barred from determining questions relating to sentences, except where such sentence has been enhanced by the High Court or where the trial court had no jurisdiction to pass the sentence, which, unfortunately for the appellant, is not the case here.
p. 3Limits of second-appeal jurisdiction on sentence
It is a ground that was not raised before the first appellate court or before the trial court. It is thus not an issue that we can take up at this stage.
p. 3New constitutional ground raised for the first time on second appeal
Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole.
p. 3Scope of second appeal - matters of law only (quoting Supreme Court)

Issues in the judgment

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minor

In the quotation from Republic v Mwangi reproduced in paragraph 9, the referring court's judgment labels the complainant in the quoted passage 'the respondent', which is confusing in the context of the present appeal where the appellant is the accused.

minor

The judgment contains minor typographical errors (e.g. 'ofience' for 'offence', 'afirmed' for 'affirmed', 'efiorts' for 'efforts'), apparently from OCR of the original.

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, "Okwakau v Republic (Criminal Appeal 63 of 2019) [2025] KECA 1076 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1076/eng@2025-06-20

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