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Court of AppealDismissedCriminal Appeal (Nakuru) No. 119 of 2017 (High Court); second appeal against Narok High Court Criminal Appeal No. 119 of 2017

Nchoe v Repulic (Criminal Appeal 6 of 2020) [2025] KECA 1211 (KLR)

Court of Appeal
4 July 2025
2,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a life sentence for robbery with violence unless the High Court increased it or the trial court lacked power to impose it.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Nakuru against the judgment of the High Court at Narok (Bwonwong'a, J) delivered on 25th September 2019, which had dismissed the appellant's appeal against conviction for robbery with violence and malicious damage to property but allowed the appeal against sentence, substituting the death sentence with life imprisonment. The appellant was convicted after an incident on 23rd January 2015 in which, armed with a metal bar and Maasai club, he broke into the complainant's home, assaulted her, robbed her of mobile phones and cash, damaged property, and attempted to rape her; he was acquitted on the attempted rape count. Before the Court of Appeal, counsel for the appellant dropped all grounds save those challenging the sentence, submitting that life imprisonment was manifestly excessive given the minor injuries, that death and life sentences should be reserved for the most heinous robberies, and citing authorities where lesser terms were substituted. The respondent countered that sentencing is discretionary and the appellate court interferes only where the sentence is manifestly excessive or the trial court acted on a wrong principle, and that no appeal lies because the High Court reduced rather than enhanced the sentence. The Court held that under section 361(1) of the Criminal Procedure Code its jurisdiction on second appeal is confined to matters of law, and section 361(1)(b) bars sentence appeals unless the sentence was enhanced or the subordinate court lacked power to pass it. Neither exception applied. The Court further held itself bound by the Supreme Court's decision in Republic v Mwangi (ISLA), which requires a properly argued case escalated through the appropriate channels before mandatory sentences for offences other than murder can be declared unconstitutional. The Court accordingly downed its tools and dismissed the appeal.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has jurisdiction under section 361 of the Criminal Procedure Code to entertain an appeal against a life sentence that was reduced (not enhanced) from a death sentence by the High Court on first appeal
  2. 2.Whether the life imprisonment imposed was manifestly excessive in the circumstances, including the nature of the injuries sustained and time spent in custody
  3. 3.Whether courts may impose a sentence other than death or life imprisonment for robbery with violence where the mandatory nature of the sentence has not been declared unconstitutional

Key legal issues

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01

Whether the Court of Appeal could entertain the appeal against sentence

Holding

It could not; the appeal was barred by section 361(1)(b) of the Criminal Procedure Code because the life sentence was a reduction of the death sentence by the first appellate court, not an enhancement, and the trial court had jurisdiction to impose the sentence.

Reasoning

Section 361(1) confines second appeals to matters of law, and severity of sentence is a matter of fact. Section 361(1)(b) permits sentence appeals only where the sentence was enhanced by the High Court or the subordinate court lacked power to pass it. Here the death sentence was reduced to life imprisonment, so neither exception applies. The Supreme Court in Republic v Mwangi (ISLA) recently restated this position.

p. 4
02

Whether courts may depart from the mandatory death/life sentence for robbery with violence

Holding

No. The Supreme Court has only permitted non-death sentences for murder; for other offences carrying a prima facie mandatory death sentence, courts must impose the sentence until a proper case on constitutional validity is filed and escalated through the appropriate channels.

Reasoning

The Court held itself bound by the Supreme Court's decision in Republic v Mwangi (ISLA), which reiterated that the Muruatetu direction - that a proper case on the constitutional validity of minimum or mandatory sentences other than murder must be filed, presented, fully argued before the High Court and escalated - remains binding on all courts below. As unpalatable as the circumstances may seem, the Court of Appeal must therefore follow the binding opinion.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law, and severity of sentence is a matter of fact on which the Court cannot entertain an appeal.
  • An appeal does not lie to the Court of Appeal against a sentence reduced by the High Court on first appeal; the bar applies unless the sentence was enhanced or the subordinate court lacked power to impose it.
  • Until the Supreme Court determines the constitutional validity of mandatory or minimum sentences for offences other than murder on a properly presented and argued case, courts below must impose those sentences for robbery with violence.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the High Court at Narok delivered on 25th September 2019 (substituting the death sentence with life imprisonment) is affirmed

The bench

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

majority
majority
majority
On appeal from
High Court at Narok
Narok High Court Criminal Appeal No. 119 of 2017
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code

Relief refused

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Revision of the life sentence to a term of imprisonment taking into account the nature of injuries and time spent in custody

Section 361(1)(b) of the Criminal Procedure Code bars second appeals against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it; neither applies here, and the mandatory nature of sentences for robbery with violence is a matter only the Supreme Court can determine on a properly escalated case

p. 4

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.

By dint of that section, the jurisdiction of this Court on a second appeal is confined to matters of law.
p. 4Scope of second appeals under section 361(1) Criminal Procedure Code
Section 361 (1) (b) of the Code bars us from entertaining appeals against sentence unless the subordinate court had no jurisdiction to pass the sentence or the sentence was enhanced by the first appellate court.
p. 4Bar on sentence appeals where sentence was reduced on first appeal
Accordingly, we have to down our tools.
p. 5Consequence of Supreme Court's holding on mandatory sentences
The appeal is in those premises dismissed.
p. 5Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment does not state the appellant's name; the case caption is absent from the text provided, so the case title is inferred from the description of the appeal rather than quoted from 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, "Nchoe v Repulic (Criminal Appeal 6 of 2020) [2025] KECA 1211 (KLR)", Case Analysis (2025). Criminal Appeal (Nakuru) No. 119 of 2017 (High Court); second appeal against Narok High Court Criminal Appeal No. 119 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1211/eng@2025-07-04

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