KNM v Republic
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a mandatory life sentence for incest unless unconstitutionality was raised in earlier courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sentence meted against the appellant was lawful in the circumstances
Key legal issues
#Whether the Court of Appeal can interfere with a mandatory statutory life sentence for incest under Section 20(1) of the Sexual Offences Act
It cannot; the sentence was imposed as prescribed by statute and the Court lacks jurisdiction under section 361(1)(b) CPC to interfere, nor can the appellant raise unconstitutionality for the first time on second appeal.
The court noted the life sentence was the statutory minimum for incest with a child under 18. Section 361(1)(b) bars sentence appeals absent enhancement or lack of power. The Supreme Court in Republic v Joshua Gichuki Mwangi affirmed that Parliament sets sentencing parameters and courts cannot strike down statutory sentences absent a proper constitutional challenge, which was never raised below.
Whether failure to call for a victim impact report or invoke sections 216, 329 and 333(2) CPC rendered the sentence unlawful or discriminatory
No; the record showed the trial court took plea in mitigation and called for a probation report, and no fresh evidence could be taken at appeal stage.
The respondent demonstrated that upon conviction the trial court considered mitigation and obtained a probation officer's report before imposing the mandatory sentence. The first appellate proceedings could not admit fresh evidence except as provided by law, so the alleged omissions did not vitiate the sentence or amount to unfair discrimination.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to issues of law and must respect concurrent findings of fact of the two courts below.
- Under section 361(1)(b) CPC, the Court of Appeal cannot hear an appeal against sentence except where the sentence was enhanced by the High Court or the trial court had no power to pass it.
- A party who fails to raise the unconstitutionality of a mandatory minimum sentence before the trial court and first appellate court is precluded from raising it for the first time in the Court of Appeal.
Court orders
#- 1.Appeal against sentence dismissed; conviction and sentence of life imprisonment upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCCRA No. 29 of 2018
- Jurisdiction invoked
- Section 361(1)(a) and (b) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Interference with the mandatory life imprisonment sentence
Court lacks jurisdiction under section 361(1)(b) CPC; constitutionality of sentence not raised in courts below
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. Consequently, we are satisfied that the appeal lacks merit and is dismissed.
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.
We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KNM v Republic", Case Analysis (2025). Criminal Appeal 328 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2279/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.