Khisa v Republic (Criminal Appeal 262 of 2019) [2025] KECA 486 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a life sentence for defilement, holding that Supreme Court precedent on mandatory minimum sentences under the Sexual Offences Act binds lower 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 charge sheet was defective
- 2.Whether the ingredients of the offence were proved
- 3.Whether the prosecution evidence was contradictory and inconsistent
- 4.Whether the prosecution failed to call a crucial witness
- 5.Whether the life sentence meted upon the appellant is unconstitutional
Key legal issues
#Scope of second appellate jurisdiction and new issues raised for the first time
The Court declined to determine the alleged defect in the charge sheet because it was neither raised before the first appellate court nor strictly a matter of law
Determining whether the charge sheet was defective would require examining the evidence before the trial court, which exceeds second appellate jurisdiction. Further, an appeal cannot arise from a matter on which the court below made no decision unless the appellant shows the issue was raised but not determined. Relying on John Kariuki Gikonyo and Alfayo Gombe Okello, the Court declined to address new issues introduced on a second appeal without explanation for the earlier failure.
Concurrent findings of fact on the ingredients of defilement
The concurrent findings of the trial court and first appellate court that the appellant defiled the 7-8 year old complainant were supported by evidence and could not be disturbed
On a second appeal the Court does not re-evaluate evidence afresh. The complainant's evidence was corroborated by her mother and the medical evidence; age was established by the birth certificate; identity was not in issue as the appellant was a known neighbour. The defence did not dislodge the prosecution case. Interference is warranted only where there is no evidence at all or the courts below wholly misunderstood the evidence.
Discrepancies and contradictions in prosecution evidence
The cited discrepancies were minor, did not affect witness credibility, and could not vitiate the conviction
Only contradictions on material facts that are substantial can be fatal; minor discrepancies do not destroy credibility. Following Phillip Nzaka Watu, human recollection is imperfect and some inconsistency may even signify honesty. Applying Twehangane Alfred, the question is whether inconsistencies are grave and point to deliberate untruthfulness, which was not shown here.
Failure to call allegedly crucial witnesses
The prosecution was under no duty to call Mr. John or his mother; their evidence would not have been of benefit and the appellant could have called them himself
Section 143 of the Evidence Act removes any numerical requirement of witnesses. Whether to call a witness is for the prosecution's discretion, interferable only for oblique motive. The Bukenya adverse-inference rule applies only where the evidence called is barely adequate. Since the assault occurred in the appellant's house, neither uncalled witness would have witnessed it, and the appellant was at liberty to call them but did not.
Constitutionality of the life sentence for defilement of a child aged 11 or below
Following the Supreme Court's decision in Republic v Mwangi (ISLA), the mandatory minimum sentence of life imprisonment under section 8(2) of the Sexual Offences Act is lawful and the sentence could not be interfered with
Although the constitutionality of the sentence was not raised before the High Court, being a matter of law the Court could entertain it. The Supreme Court in Republic v Mwangi affirmed that Muruatetu concerned only the mandatory death sentence for murder and did not address minimum sentences, which must be challenged through a properly presented and fully argued case escalated through appropriate channels. The sentence was therefore lawful.
Legal principles established
#- The jurisdiction of the Court of Appeal on a second appeal is confined to matters of law and it will not disturb concurrent findings of fact absent total absence of evidence or misdirection
- A second appellate court cannot entertain an issue that was never raised in, or determined by, the courts below
- Mandatory minimum sentences under the Sexual Offences Act, including life imprisonment for defilement of a child aged 11 or below, remain constitutional per the Supreme Court
Court orders
#- 1.The appellant's appeal on both conviction and sentence is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- High Court Criminal Appeal No. 148 of 2015
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code, confined to matters of law only
Relief refused
#Application of section 333(2) of the Criminal Procedure Code in resentencing
The Court was bound by the Supreme Court's affirmation of the constitutionality of the mandatory minimum sentences under the Sexual Offences Act
Interference with concurrent findings of fact on conviction
On a second appeal the Court will not interfere with concurrent findings of fact unless unsupported by evidence or the courts below wholly misunderstood the evidence
Costs
No costs order appears in the judgment; the Court simply dismissed the appeal.
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.
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.
In line with that finding, we are disinclined to address matters where there is no opinion by the two courts below on new issues introduced for the first time on a second appeal.
No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.
Accordingly, we dismiss the appellant's appeal on both conviction and sentence.
Issues in the judgment
#The heading attributes the first appellate judgment to Sitati J., while the body of the judgment states it was delivered by Ali-Aroni, J. (as she then was)
The complainant's age is given as 7 years in the charge and by the respondent, but the Court's own recital states the birth certificate established she was aged 8
The judgment recites that the Court 'carefully considered the record and carefully considered the appellant's Petition of Appeal' in duplicative terms
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khisa v Republic (Criminal Appeal 262 of 2019) [2025] KECA 486 (KLR)", Case Analysis (2025). Criminal Appeal (not explicitly numbered in the judgment; appeal from Bungoma High Court Criminal Appeal No. 148 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/486/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.