Kasanga v Republic (Criminal Appeal 6 of 2020) [2025] KECA 693 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a man's 25-year sentence for sexually assaulting a child, even though he was originally charged with a different offence.
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 first appellate court discharged its mandate judiciously
- 2.Whether the trial court was correct in invoking and relying on section 5(1) of the Sexual Offences Act to convict the appellant of sexual assault when he was charged with defilement
- 3.Whether the offence of sexual assault under section 5(1) of the Sexual Offences Act was proved, including the lawfulness of the act and the age of the complainant
- 4.Whether the sentence of twenty-five years was unjust and excessive
Key legal issues
#Whether the first appellate court discharged its duty of re-evaluating the evidence
The learned Judge's judgment, which rehashed the evidence and then conducted an independent analysis and reached his own conclusion, complied with the mandate and section 169 of the Criminal Procedure Code.
The Court reiterated that a first appeal is by way of retrial requiring exhaustive re-evaluation, but held there is no specific methodology prescribed. The High Court appreciated its role, referred to Pandya v Republic, rehashed the evidence and submissions, and in the final part conducted an independent analysis and affirmed conviction and sentence. That satisfied section 169 of the Criminal Procedure Code, so the ground failed.
Conviction for sexual assault when the charge was defilement
The trial court correctly invoked section 5(1) of the Sexual Offences Act; section 179 of the Criminal Procedure Code permits conviction for a proved minor cognate offence without amending the charge, and any omissions are curable under section 382.
The evidence disclosed inappropriate sexual contact but not penile penetration required for defilement, as in DKG v Republic. The Court noted section 186 of the Sexual Offences Act was deleted by the Statute Law (Miscellaneous Amendment) Act, 2023, leaving section 179 of the Criminal Procedure Code as the fallback provision for conviction for a proved minor offence not charged, and found the Judge's reasoning consistent with Court of Appeal jurisprudence.
Proof of the offence of sexual assault, including unlawfulness and the complainant's age
The offence was proved: the complainant's detailed testimony was corroborated by medical evidence, and the victim's status as a 7-year-old child made the sexual act unlawful since a child cannot consent.
Section 5 of the Sexual Offences Act does not require the victim to be a child, so age was not an ingredient; but establishing minority is one way of showing the act was unlawful. Age may be proved by oral, documentary or parental evidence; PW1 stated the child was 7 years old and this was never impeached in cross-examination. Under section 8(1), a child has no capacity to consent, so the assault was unlawful.
Whether the sentence of twenty-five years was excessive
The Court lacked jurisdiction under section 361(1)(b) to entertain the sentence challenge, and in any event the sentence was not excessive for sexual assault on a 6-year-old by a person entrusted with her care.
Section 361(1)(b) bars second appeals against sentence except where the sentence was imposed without jurisdiction or enhanced by the High Court, and severity is a matter of fact outside second appeal. The alleged violation of sections 216 and 329 of the Criminal Procedure Code was raised for the first time on second appeal and fell outside the Court's jurisdiction.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and may not interfere with findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong.
- A first appellate court must conduct an exhaustive re-evaluation of the evidence, weigh conflicting evidence and draw its own independent conclusions, though no specific methodology is prescribed.
- A trial court may convict an accused of a proved minor cognate offence which he was not charged with, without amendment of the charge under section 214 of the Criminal Procedure Code.
- Age of a complainant is not an ingredient of the offence of sexual assault under section 5 of the Sexual Offences Act, and a child's age may be proved by means other than a birth certificate.
- The old rule in Maina v Republic that it is dangerous to convict on the evidence of a woman or girl is no longer good law following the proviso to section 124 of the Evidence Act.
- The Court of Appeal may not entertain issues raised for the first time on a second appeal.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction for sexual assault contrary to section 5(1) of the Sexual Offences Act and the sentence of twenty-five years' imprisonment are affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Setting aside the conviction for sexual assault on the ground that the appellant was convicted of an offence not charged
The conviction for a lesser cognate offence was covered by section 179 of the Criminal Procedure Code, in line with DKG v Republic
Challenge to the sentence of twenty-five years
Section 361(1)(b) bars second appeals against sentence and the sections 216 and 329 argument was raised for the first time on second appeal
Costs
No costs order was made in the judgment; the appeal was simply dismissed.
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 end, we find no merit in this appeal, which we hereby dismiss in its entirety.
in a second appeal such as this one, matters of fact are for the trial court and the first appellate court – see Okeno vs. Republic (1972) E.A. 32
A first appeal to this Court is by way of a retrial, entailing an exhaustive appraisal and reevaluation of the evidence.
Section 179 of the Criminal Procedure Code may therefore continue to be the fallback provision for conviction for a proved minor offence which an accused person was not charged with.
The prevailing jurisprudence is that the age of a child is not exclusively proved by the production of a birth certificate.
the alleged violation of sections 216 and 329 of the Criminal Procedure Code is being canvassed for the first time in this appeal and is, therefore, not within our jurisdiction.
Issues in the judgment
#The judgment refers the appellant to section 186 of the Sexual Offences Act as deleted by the Statute Law (Miscellaneous Amendment) Act, 2023, but the learned Judge's quoted passage relied on section 186 of the Criminal Procedure Code; the Court's correction creates an apparent tension in the record about which provision was invoked below.
Internal inconsistency in the judgment on the complainant's age: the particulars of the charge and the sentencing analysis state the complainant was 6 years old, while the Court's proof-of-age finding states she was 7.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gitire v Republic (Criminal Appeal E027 of 2023) [2025] KECA 1159 (KLR)[2025] KECA 1159 (KLR)20 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kasanga v Republic (Criminal Appeal 6 of 2020) [2025] KECA 693 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/693/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.