Levis Nyandika Mayore v Republic
The bottom line
#Kenya's Court of Appeal upheld a defilement conviction and 20-year minimum sentence, but ordered that 5 months spent in remand be deducted from the sentence.
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 failure to conduct a voir dire examination of the 14-year-old complainant vitiated the trial and conviction
- 2.Whether the mandatory/minimum 20-year sentence under section 8(3) of the Sexual Offences Act is unconstitutional
- 3.Whether the period spent in remand custody should be factored into the sentence under section 333(2) of the Criminal Procedure Code
Key legal issues
#Voir dire examination of a child complainant
Failure to conduct voir dire did not vitiate the trial because the complainant was sworn, demonstrating understanding of the oath, and her evidence was corroborated
Section 19 of the Oaths and Statutory Declarations Act applies to children of tender years who do not understand the oath. The complainant gave evidence after being duly sworn, so the section was inapplicable. Even where voir dire is omitted, the conviction may stand if the child's evidence is corroborated by independent material evidence; here PW5's testimony and the medical evidence of penetration corroborated PW3, so the conviction was safe.
Constitutionality of the minimum sentence under section 8(3) Sexual Offences Act
The 20-year minimum sentence is constitutional; Muruatetu applies only to mandatory sentences such as the death penalty for murder
Relying on Republic v Mwangi (ISLA) and Republic v Julius Kitsao Manyeso, the Court held that Muruatetu addressed only the mandatory death sentence under section 204 of the Penal Code and did not touch minimum sentences. Minimum sentences set a floor, preserving judicial discretion, and the 20-year sentence imposed was the statutory minimum, hence neither excessive, illegal nor unconstitutional.
Credit for time spent in remand custody under section 333(2) CPC
The trial court erred in not factoring the 5 months and 7 days spent in remand; that period must be taken into account in computing the sentence
The proviso to section 333(2) CPC, introduced in 2007, obliges courts to take into account pre-sentence custody so the sentence is reduced proportionately. The trial court merely sentenced the appellant to 20 years without accounting for the remand period. The respondent conceded this ground. Following Ahamad Abolfathi Mohammed, the period from arrest on 2nd May 2015 to release on bond on 12th October 2015 must be computed into the sentence.
Legal principles established
#- On a second appeal the Court considers only matters of law and will not interfere with concurrent findings of fact unless unsupported by the evidence
- The threshold for voir dire examination is 14 years; failure to conduct voir dire does not per se vitiate the prosecution case but the unexamined child's evidence cannot alone sustain a conviction and must be corroborated
- Muruatetu did not invalidate mandatory or minimum sentences under the Sexual Offences Act or Penal Code; minimum sentences leave courts discretion above the floor
- Section 333(2) CPC obliges sentencing courts to reduce the sentence proportionately by the period spent in pre-sentence custody; a mere statement that the period was considered, with sentence running from conviction, is insufficient
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence partially succeeds to the extent that the 5 months and 7 days spent in remand custody between 2nd May 2015 and 12th October 2015 be taken into account in computing the 20-year imprisonment sentence pursuant to section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyamira
- Nyamira HC Cri App. No 14 of 2018
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code, confined to matters of law
Relief refused
#Quashing of conviction on account of absence of voir dire examination
Complainant gave sworn evidence showing understanding of the oath; her evidence was cogent and corroborated by PW5 and medical evidence
Declaration that the 20-year minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional
Supreme Court decisions in Muruatetu, Mwangi and Manyeso confirm Muruatetu did not invalidate mandatory or minimum sentences
Costs
No order as to costs is recorded 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.
The upshot of the foregoing analysis is that the appellant’s appeal against his conviction is not merited and is dismissed, while his appeal against the sentence partially succeeds
the 5 months and 7 days the appellant spent in remand custody between his arrest on 2nd May 2015, and his release on bond on 12th October 2015 be taken into account in computing his sentence of 20 years’ imprisonment
It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination
“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody
Issues in the judgment
#Statute name omitted mid-sentence in the voir dire holding
Appeal numbered 2020 but memorandum of appeal dated 10th July 2025 and hearing on 3rd September 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Levis Nyandika Mayore v Republic", Case Analysis (2026). Criminal Appeal 138 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.