Ondati v Republic (Criminal Appeal 147 of 2020) [2025] KECA 1897 (KLR)
The bottom line
#Kenya's Court of Appeal kept a 20-year defilement sentence intact but ordered that ten months spent in remand count towards it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The propriety and legality of the sentence imposed upon the appellant, the appeal being confined to sentence only
- 2.Whether the period spent in remand custody should be taken into account under Section 333(2) of the Criminal Procedure Code
Key legal issues
#Legality of the twenty-year minimum sentence for defilement of a girl aged between 12 and 15 years
The sentence was the statutory minimum under Section 8(3) of the Sexual Offences Act, was lawful and proportionate, and could not be disturbed on second appeal.
The victim's age of 15 years was proved by documentary and oral evidence. Section 8(3) prescribes a minimum of twenty years for defilement of a victim aged between twelve and fifteen. The trial court considered mitigation including first-offender status but held its hands tied; the High Court affirmed. No misdirection or error of law was shown, and under Section 361 CPC a lawful sentence is not interfered with unless manifestly excessive or founded on wrong principles.
Application of Section 333(2) of the Criminal Procedure Code to remand custody
Both courts below erred in failing to account for the appellant's remand period from 13th January 2016 to conviction on 2nd November 2016; the sentence must be computed from 13th January 2016.
Section 333(2) mandates courts to deduct time already spent in detention from the total sentence to prevent excessive punishment and promote proportionality. The appellant was granted bail on 13th January 2016 but could not meet the terms and remained in remand throughout the trial until conviction on 2nd November 2016. The trial court omitted this consideration and the first appellate court repeated the omission, which the Court corrected on appeal.
Legal principles established
#- On a second appeal limited to sentence, the Court of Appeal may not interfere with a lawful sentence unless it is manifestly excessive, harsh, or founded on wrong principles.
- Sentencing courts, and first appellate courts reviewing sentence, must consider the period an accused spent in remand custody under Section 333(2) of the Criminal Procedure Code; failure to do so is an omission a reviewing court must correct.
Court orders
#- 1.The appellant's sentence shall be computed from 13th January 2016, the date he was presented to court and granted bail but remained in remand custody
- 2.To that very limited extent, the appeal on sentence succeeds; otherwise the conviction and sentence as affirmed by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) of the Criminal Procedure Code, confined to matters of law (sentence only)
Relief refused
#Reduction of the twenty-year sentence to a lesser punishment on grounds of rehabilitation
The sentence was the statutory minimum under Section 8(3) of the Sexual Offences Act and was lawful and proportionate; no misdirection or error of law was demonstrated
Costs
No costs order is made; the judgment is silent on costs.
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.
We accordingly direct that the appellant’s sentence shall be computed from 13th January 2016. To that very, very limited extent, the appeal on sentence succeeds.
On second appeal, this Court is not at liberty to interfere with a sentence that is lawful unless it is shown to be manifestly excessive, harsh, or founded on wrong principles.
The purport of this section is to mandate the courts to consider the period a convicted person has spent in custody when imposing a prison sentence.
Issues in the judgment
#The judgment states the charge was under Section 8(1) as read with Section 8(5) in the opening paragraph, but later describes the conviction as under Section 8(1) as read with Section 8(3); the sentence of twenty years aligns with Section 8(3).
The judgment does not state the case number of the appeal before the Court of Appeal, nor the neutral citation.
The judgment makes no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondati v Republic (Criminal Appeal 147 of 2020) [2025] KECA 1897 (KLR)", Case Analysis (2025). Criminal Appeal (not expressly numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1897/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.