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Court of AppealDismissedCriminal Appeal No. E003 of 2022 (High Court); second appeal delivered at Mombasa

Kela v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1569 (KLR)

Court of Appeal of Kenya
31 July 2026
AMA. K. MurgorKLK. I. LaibutaGNG. W. Ngenye-Macharia
1,773 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 refused to cut a 15-year defilement sentence, confirming a guilty plea leaves only the sentence — not conviction — open to challenge.

What this practically means

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Executive summary

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This is a second appeal, heard at Mombasa by a bench of three Judges of Appeal (Murgor, Laibuta and Ngenye-Macharia JJA), against the dismissal by the High Court at Garsen (S. M. Githinji J.) of the appellant's first appeal. The appellant was convicted of defilement contrary to section 8(1) and (3) of the Sexual Offences Act after pleading guilty before the Principal Magistrate's Court at Mpeketoni, and was sentenced to 15 years imprisonment - a reduction from the 20-year mandatory minimum - in recognition of his guilty plea. Before the Court of Appeal he abandoned his appeal on conviction and argued only that the sentence was manifestly harsh and excessive, citing his status as a remorseful first-time offender with school-going children and a cardiac ailment. The State, through Principal Prosecution Counsel Gichana, relied on Manyeso v Republic and Wanjema v Republic to urge that sentencing is the trial court's discretion which the appellate court cannot disturb absent an illegal sentence. The Court reaffirmed that a second appeal is confined to matters of law under section 361 of the Criminal Procedure Code, and that section 348 bars appeals following a guilty plea except as to the extent and legality of sentence. Applying its earlier decision in Francis Nkunja Tharamba v Republic, the Court held that a lawful sentence ought not be disturbed. Concluding that the 15-year sentence was lawful and neither harsh nor unjust, it dismissed the appeal and upheld the High Court's judgment in its entirety. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the sentence of 15 years imprisonment imposed on the appellant was manifestly harsh and excessive

Key legal issues

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01

Whether the Court of Appeal, on a second appeal against sentence by a person who pleaded guilty, can interfere with the sentence imposed

Holding

The appeal fails. The 15-year sentence was lawful - indeed lenient, being below the 20-year mandatory minimum - and severity of sentence is a matter of fact with which the Court will not interfere on second appeal.

Reasoning

The appellant abandoned his appeal on conviction, leaving only sentence. Section 348 of the Criminal Procedure Code bars appeal on a guilty plea except as to the extent and legality of sentence. Sentencing is the trial court's discretion; interference is permissible only where the discretion was not properly exercised or the sentence is unlawful. The trial court actually reduced the sentence from the 20-year minimum to 15 years because of the guilty plea, so the sentence was neither unlawful nor manifestly harsh.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
  • Where an accused pleaded guilty and was convicted on that plea, an appeal lies only as to the extent and legality of the sentence.
  • Sentencing is a discretionary act of the trial court; an appellate court will not interfere with a lawful sentence absent a demonstration that the discretion was improperly exercised.

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.The judgment of the High Court of Kenya at Garsen (S. M. Githinji J.) dated 18th December 2023 in Criminal Appeal No. E003 of 2022 is upheld

The bench

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

AM
majority
KL
majority
GN
majority
On appeal from
High Court of Kenya at Garsen
Criminal Appeal No. E003 of 2022
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)

Relief refused

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Substitution of the 15-year custodial sentence for a non-custodial sentence

Sentencing is the trial court's discretion; the sentence was lawful and the appellate court will not interfere with a lawful sentence

p. 4

Costs

No costs order recorded 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.

A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 3Scope of second appeal
…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide.
p. 3Judicial discretion in sentencing
The appellant’s appeal be and is hereby dismissed; and
p. 4Final orders - dismissal of appeal
The judgment of the High Court of Kenya at Garsen (S. M. Githinji J.) dated 18th December 2023 in Criminal Appeal No. E003 of 2022 be and is hereby upheld.
p. 4Final orders - upholding High Court judgment

Issues in the judgment

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minor

The judgment refers to the High Court judgment as delivered on 18th December 2023 but the narrative of the first-appeal dismissal elsewhere states the sentence was affirmed 'by the High Court on 1st appeal'; the Grounds also allege violations of Evidence Act provisions (Sections 33, 77, 163, 164) that the court never addresses, as the appeal was abandoned on conviction and argued only on sentence.

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, "Kela v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1569 (KLR)", Case Analysis (2026). Criminal Appeal No. E003 of 2022 (High Court); second appeal delivered at Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1569/eng@2026-07-31

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