Nyangau v Republic (Criminal Appeal 344 of 2019) [2025] KECA 1779 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a challenge to a mandatory life sentence because the constitutionality argument was raised too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court should interfere with the sentence of life imprisonment imposed on the appellant
- 2.Whether the mandatory life sentence under section 8(2) of the Sexual Offences Act is unconstitutional, and whether that issue can be raised for the first time on second appeal
Key legal issues
#Scope of the Court's jurisdiction on a second appeal against sentence
The appeal being on sentence only, the Court could interfere only on grounds of law; no such ground was established.
Section 361(1) CPC confines a second appeal to matters of law. Sentencing is discretionary, and an appellate court interferes only where the trial court acted on wrong principles, overlooked material facts, or the sentence is manifestly excessive. The appellant, having pleaded guilty after four cautions and the sentence being that prescribed by statute, showed no basis for interference.
Whether the constitutionality of the mandatory life sentence could be raised on second appeal
No. The issue was raised for the first time on second appeal and was precluded; the Court also lacked jurisdiction to interfere with the statutory sentence.
Relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, where the constitutionality of a sentence was not raised before the trial court or the High Court, the litigant is precluded from raising it before the Court of Appeal. The record showed no such challenge before the High Court. Moreover, section 8(2) of the Sexual Offences Act remains valid and its mandatory sentence lawful.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law only.
- An appellate court will not interfere with a sentence unless the trial court acted on wrong principles, overlooked material facts, or the sentence is manifestly excessive.
- A party cannot raise the constitutionality of a sentence for the first time on appeal before the Court of Appeal where it was not raised before the trial court or the High Court.
- Sentencing parameters are set by Parliament; a statutory sentence remains lawful unless declared unconstitutional.
Court orders
#- 1.Appeal dismissed; conviction and sentence of life imprisonment as upheld by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- not stated (appeal from Keroka Senior Resident Magistrate's Criminal Case No. 408 of 2014)
- Jurisdiction invoked
- Second appeal under section 361(1) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Interference with the mandatory life sentence on grounds of unconstitutionality
The Court lacks jurisdiction to interfere; the constitutionality of the sentence was not raised before the trial court or the High Court and cannot be raised for the first time at this stage
Costs
No costs order made in the judgment.
Quotable passages
#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 circumstances, the appellant has not established any grounds upon which this Court can interfere with his sentence. Ultimately, we are satisfied that the appeal lacks merit and is dismissed.
This being a second appeal, the mandate of the Court on a second appeal is confined to matters of law only, unless it is shown that the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse.
Although the appellant argues that the mandatory minimum sentence imposed is unconstitutional, this Court lacks jurisdiction to interfere with the sentence.
It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court.
Issues in the judgment
#The judgment does not state the case number of the present appeal, the parties' counsel, or any costs order; the caseNumber and costsOrder fields are accordingly incomplete.
The judgment quotes the trial court's facts naming the complainant ('one Loice Nyakeko a minor aged 9 years') despite other passages stating that initials were used to protect the minor's identity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyangau v Republic (Criminal Appeal 344 of 2019) [2025] KECA 1779 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1779/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.