https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1640

Mwendo v Republic (Criminal Appeal E028 of 2025) [2026] KECA 1640 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1640 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E028 of 2025 F Tuiyott, MN Nduma & M Sila, JJA July 31, 2026 Between Alex Muthiani Mwendo Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Machakos (E. M. Muriithi, J) delivered on 16th December, 2015) Judgment 1.The appellant was charged before the Principal Magistrate’s Court at Kithimani with the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act, 2006 (the Act), and in the alternative, with committing an indecent act with a child contrary to Section 11(1) of the same Act. The particulars of the main charge were that on diverse dates between 19th November 2012 and 9th January 2013, at [Particulars Withhels] Market, Masinga District, within Machakos County, he intentionally caused his penis to penetrate the vagina of MMM, a child aged 15 years. Although he was charged under Section 8(4) of the Act which provides for an offence where the minor is over 16 years old, the minor was aged 15 years, and after trial, he was convicted of the main offence under Section 8(3) of the Act, which provides for the offence of defilement where the minor is aged between 12 and 15 years. He was consequently sentenced to 20 years imprisonment, being the sentence under the said Section 8(3) of the Act. His first appeal to the High Court at Machakos was dismissed, both conviction and sentence being upheld, and he has now lodged this second appeal. 2.Although the appellant had challenged the conviction in his undated memorandum of appeal, he abandoned the grounds relating to conviction in his written submissions and confined his challenge to sentence. He argued that the minimum sentences prescribed by the Act were unconstitutional as they denied the court discretion. He submitted that the court ought to set him free considering the period of time that he has spent in prison. He submitted that the remaining sentence is within the requirements of Section 4 of the Probation of Offenders Act after commutation of one third of his sentence pursuant to the provisions of Section 46 of the Prisons Act, Cap 90. He prayed for substitution with a non-custodial sentence or reduction to time served. 3.The respondent represented by Ms. Njoki Keng’aara, learned Principal Prosecution Counsel, opposed the appeal through written submissions dated 13th March 2026 submitting that under Section 361(1) of Criminal Procedure Code (CPC), this Court has no jurisdiction to interfere with sentence unless enhanced by the High Court. Counsel emphasized that the sentence was lawful, constitutional, and in line with the Supreme Court’s decision in R vs Joshua Gichuki Mwangi & 4 Others [2024] KESC 34 (KLR), which upheld mandatory minimums under the Sexual Offences Act. 4.Having considered the record of appeal and the submissions by the parties the sole issue for determination is whether we should revisit the sentence pursuant to the submissions of the appellant. 5.Section 361(1) CPC limits this Court’s jurisdiction on second appeal only to matters of law. Severity of sentence is ordinarily a matter of fact, but where legality or constitutionality is in issue, it becomes a matter of law. In Joshua Gichuki Mwangi (supra), the Supreme Court upheld the lawfulness of the sentences under the Sexual Offences Act. The sentence of 20 years was therefore lawful for it is a sentence prescribed by Section 8(3) of the Sexual Offences Act given that the minor was 15 years old. We see no reason to set aside this sentence. We are in the same vein unable to consider releasing the appellant on probation pursuant to Section 4 of the Probation of Offenders Act as that would be substituting the nature of sentence on a second appeal. 6.The appellant submitted that this Court ought to apply Section 46 of the Prisons Act. The same provides as follows:46.Remission of sentence1)Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one- third of their sentence or sentences.Provided that in no case shall—i.any remission granted result in the release of a prisoner until he has served one calendar month;ii.any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) of the Penal Code (Cap. 63) or to be detained during the President's pleasure.2)For the purpose of giving effect to the provisions of subsection (1), each prisoner on admission shall be credited with the full amount for remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.3)A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period—a.spent in hospital through his own fault; orb.while undergoing confinement as a punishment in a separate cell.4)A prisoner may be deprived of remission —a.where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;b.where the Cabinet Secretary for the time being responsible for internal security considers that it is in the interests of public security or public order.5)Notwithstanding the provisions of subsection (1) of this section, the Commissioner may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special ground. 7.From the foregoing, it will be observed that generally, under Section 46(1) prisoners earn a remission of one third of their sentence. Remission is earned, and one may be deprived of remission under subsection (4). The issue of remission of sentence is not a matter for this Court to consider or make an order on appeal, for it falls within the ambit of the Commissioner of Prisons as demonstrated by the wording of Section 46 above. In any event, a request for remission cannot be deemed to be an appeal against sentence. We therefore refrain from making any orders regarding remission of sentence as sought by the appellant. We will let the law follow its natural course as prescribed in Section 46 of the Prisons Act. 8.The only issue that we would wish to consider regarding sentence is the time spent in custody. We note that both the trial court and the High Court did not consider the time spent in custody pursuant to Section 333(2) of the Criminal Procedure Code. Section 333 is drawn as follows:1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 9.From the foregoing, it will be seen that the proviso to subsection(2)mandates courts to take into account the period spent in custody when pronouncing sentence. In our case, the appellant was arrested on 9th January 2013. The record shows that he was placed in custody until 26th February 2013 when the court granted him cash bail of Kshs.10,000/=. It is not very clear when exactly he was released on cash bail but the record shows that he was no longer in custody on 8th March 2013. We will give him benefit of doubt and assume that he was released on cash bail on 8th March 2013. However, he failed to appear in court and a warrant of arrest was issued. He was subsequently arrested on 3rd June 2014 and he remained in custody until judgment on 17th September 2014. The number of days spent in custody need to be reduced from his sentence pursuant to Section 333(2) of the CPC above. The omission to consider this period spent in custody is a matter of law, and this Court is entitled to intervene to ensure compliance. 10.Accordingly, the sentence of 20 years under Section 8(3) of the Sexual Offences Act is affirmed, save that we order that the period spent in custody, as outlined above, be taken into account. The appeal partially succeeds to that extent only. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.F. TUIYOTT...............JUDGE OF APPEAL NDUMA NDERI...............JUDGE OF APPEALMUNYAO SILA………………….…….……JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.