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Court of AppealDismissedCriminal Appeal (not expressly numbered in judgment)

Masembo v Republic (Criminal Appeal E029 of 2024) [2025] KECA 1635 (KLR)

Court of Appeal of Kenya
3 October 2025
1,845 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 that mandatory life sentences for defilement remain constitutional, and second appeals cannot challenge how harsh they are.

What this practically means

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Executive summary

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The appellant, Jacktone Ojuka Masembo, was convicted on his own plea of guilty of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, the complainant being a ten-year-old girl, and sentenced to life imprisonment. His first appeal to the High Court (W. Kiarie, J.) against both conviction and sentence was dismissed in a judgment dated 26th July 2021. Before the Court of Appeal at Kisumu, the appellant pressed only a challenge to sentence, contending that the mandatory life sentence was unconstitutional and that the courts below failed to apply relevant Criminal Procedure Code provisions on sentencing; he additionally cited mitigating circumstances including his status as a first offender and his blindness. The State opposed, invoking the second appellate court's restricted mandate under section 361(1) of the Criminal Procedure Code and the Supreme Court's affirmation of the mandatory sentences in the Sexual Offences Act in Republic v Joshua Gichuki Mwangi. The Court held that severity of sentence is a matter of fact not entertainable on second appeal, that interference is permissible only on demonstration of material misdirection, and that for as long as section 8 of the Sexual Offences Act remains unamended the mandatory sentences therein are legal, Muruatetu having addressed only the mandatory death sentence for murder. Finding no basis to interfere with the sentence, the Court dismissed the appeal in its entirety. No costs order was made. The judgment binds subordinate courts and the High Court to the continued enforceability of mandatory life sentences for defilement of children aged eleven and below.

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, as a second appellate court whose mandate is limited to matters of law, can interfere with the mandatory life sentence imposed under section 8(1) as read with section 8(2) of the Sexual Offences Act
  2. 2.Whether the mandatory life sentence for defilement of a child aged eleven years and below is unconstitutional

Key legal issues

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01

Constitutionality of the mandatory life sentence under section 8(1) as read with section 8(2) of the Sexual Offences Act

Holding

The mandatory life sentence is constitutional; trial courts have no discretion to impose a lesser sentence for defilement of a child aged eleven years and below

Reasoning

Relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, the Court held that mandatory sentences prescribe the singular sentence upon conviction, leaving no discretion. Muruatetu dealt only with the mandatory death sentence for murder and did not address minimum sentences. The statutory mandatory sentence for defilement therefore stands unless the Legislature amends it.

p. 3
02

Scope of the Court's jurisdiction on a second appeal against sentence

Holding

Severity of sentence is a matter of fact barred on second appeal; the Court may interfere only where a material misdirection, manifest excessiveness or a wrong principle is shown

Reasoning

Section 361(1) of the Criminal Procedure Code confines the second appellate court to matters of law, and section 361 expressly excludes severity of sentence. Following Bernard Kimani Gacheru, an appellate court will not interfere merely because it might itself have imposed a lighter sentence; interference requires a material factor overlooked, wrong material taken into account, or a wrong principle.

p. 3

Legal principles established

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  • As long as section 8 of the Sexual Offences Act remains unamended, the mandatory sentences therein are legal and courts have no discretion to impose a sentence below the statutory minimum for sexual offences
  • Severity of sentence is a matter of fact and is not entertainable on second appeal; interference is only upon demonstration of material misdirection

Court orders

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  1. 1.The appeal against sentence is dismissed
  2. 2.The conviction and life sentence imposed by the trial court and upheld by the High Court stand

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 of Kenya
not stated in judgment
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361(1) of the Criminal Procedure Code

Relief refused

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Substitution of the life sentence with a determinate term sentence taking into account the appellant's individual circumstances (first offender, disability, claimed reformation)

Section 361 of the Criminal Procedure Code bars a second appeal on severity of sentence, and the Supreme Court has affirmed the constitutionality of the mandatory sentences in the Sexual Offences Act

p. 4

Costs

No order as to costs appears 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.

Section 361 of the Criminal Procedure Code is unequivocal that a second appeal to this Court on severity of sentence is a matter of fact and is not to be entertained by the Court.
p. 4Scope of second appeal on sentence
Consequently, there is no basis to interfere with the sentence imposed. The upshot is that the appeal lacks merit and is dismissed.
p. 4Final orders - disposition
mandatory minimum sentences in the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to impose sentence below the minimum statutory sentences in sexual ofiences
p. 3Constitutionality of mandatory sentences under the Sexual Offences Act

Issues in the judgment

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minor

The memorandum of appeal number and the High Court appeal number are not stated anywhere in the judgment; caseNumber fields are correspondingly incomplete

minor

No costs order appears in the judgment; the judgment ends with the dismissal and delivery date without any order on costs

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, "Masembo v Republic (Criminal Appeal E029 of 2024) [2025] KECA 1635 (KLR)", Case Analysis (2025). Criminal Appeal (not expressly numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1635/eng@2025-10-03

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