Kazungu v Republic (Criminal Appeal E010 of 2023) [2025] KECA 778 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming you cannot raise a new defence for the first time on a second appeal.
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 prosecution proved the case beyond reasonable doubt
- 2.Whether the appellant's defence under section 8(5)(b) of the Sexual Offences Act was considered
- 3.Whether the sentence meted out was lawful
Key legal issues
#Proof of defilement (age, identification, penetration)
The prosecution proved the complainant's age (16 years, by Birth Certificate), identification by recognition, and penetration by the victim's testimony corroborated by medical evidence; the conviction was sound.
The Birth Certificate fixed the complainant's age at 16 at the time of the offence. Both PW1 and PW2 identified the appellant as her cousin, making identification by recognition, which is more reliable than identification of a stranger. The proviso to section 124 of the Evidence Act permitted conviction on the victim's credible evidence. The appellant did not deny the sexual relationship.
Whether the section 8(5)(b) defence (mistake as to age) could be raised on second appeal
No. The defence was never raised at trial or on first appeal, so the Court could not entertain it on a second appeal limited to matters of law.
The appellant gave an unsworn defence and never raised the section 8(5)(b) defence in the two courts below. Raising a new point on appeal is discretionary and will not be allowed where it would involve disputed facts not tested at trial, per Wachira v Ndanjeru. A second appeal proceeds on the record only; concurrent factual findings cannot be disturbed.
Whether failure to conduct a DNA test vitiated the conviction
No. DNA is not a prerequisite; the question was who defiled the complainant, not who impregnated her.
Section 36(1) of the Sexual Offences Act confers a discretion ('may') on the trial court to order samples for DNA testing. Following Evans Wamalwa Simiyu and Williamson Sowa Mbwanga, defilement is proved by evidence, including the victim's oral testimony, not by DNA. Paternity of the resulting child is a different question from whether defilement occurred.
Lawfulness of the 15-year mandatory minimum sentence
The sentence was lawful, being the mandatory minimum under section 8(4) of the Sexual Offences Act as clarified by the Supreme Court in Republic v Mwangi; ISLA.
Section 8(4) prescribes imprisonment for not less than 15 years for defilement of a child aged 16 to 18. Following the Supreme Court's 2024 decision, mandatory minimum sentences under the Act are legal, so the Court found no fault with the sentence and declined to interfere.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact by the two courts below.
- A defence not raised before the trial court or the first appellate court cannot be raised for the first time in a second appeal.
- A DNA test is not a prerequisite to proving defilement; the trial court has a discretion under section 36(1) of the Sexual Offences Act to order one.
- A minor cannot consent to sexual activity, however adult-like the minor's conduct may appear.
- Mandatory minimum sentences under the Sexual Offences Act are lawful, per the Supreme Court's clarification in Republic v Mwangi; ISLA (Amicus Curiae).
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court at Malindi (Githinji, J.) delivered on December 21, 2021 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- not stated in judgment
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Invocation of the defence under section 8(5)(b) of the Sexual Offences Act
The defence was not raised before the trial court or the first appellate court; a second appellate court cannot entertain it on the record as it stands.
Reduction of the 15-year sentence
The mandatory minimum sentence under section 8(4) of the Sexual Offences Act is lawful per the Supreme Court in Republic v Mwangi; ISLA (Amicus Curiae).
DNA testing to establish paternity of the complainant's child
A DNA test is not a prerequisite to proving defilement; section 36(1) of the Sexual Offences Act gives the trial court a discretionary 'may' power.
Costs
No costs order 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 is that this appeal lacks merit and is hereby dismissed in its entirety. Consequently, we uphold the Judgment of the High Court at Malindi (Githinji, J.) delivered on December 21, 2021. Orders accordingly.
this Court will, except in exceptional circumstances, concern itself only with the application of the law to the facts as settled by the two courts below
A minor, for all intent and purposes, even if he/she acts in a manner to suggest that they are interested in sexual interactions, cannot give consent.
It is trite that a DNA test is not a prerequisite to establish a charge of defilement.
it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence
Issues in the judgment
#The judgment records an internal discrepancy between the age of the complainant in the main charge (16 years) and in the alternative charge (10 years), which the court attributed to inadvertence.
The judgment does not record any costs order despite disposing of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu v Republic (Criminal Appeal E010 of 2023) [2025] KECA 778 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/778/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.