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Court of AppealDismissednull

Ngicho v Republic (Criminal Appeal E036 of 2022) [2025] KECA 1626 (KLR)

Court of Appeal of Kenya
3 October 2025
ASAsike-MakhandiaHOH.A. OmondiLAL. Achode
1,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that defilement of a child under 12 carries a mandatory life sentence in Kenya, leaving judges no discretion.

What this practically means

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Executive summary

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This is a second appeal before the Court of Appeal at Kisumu against conviction and sentence for defilement of an 11-year-old girl, contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The trial court convicted the appellant and imposed a mandatory life sentence on 4th March 2019. The first appeal to the High Court (Homabay Criminal Appeal No. 4 of 2019) was dismissed in its entirety upon re-evaluation of the evidence. Before the Court of Appeal, the appellant raised two principal grounds: first, that the victim was aged between 12 and 14 years, so the offence should have fallen under Section 8(3), attracting a minimum sentence of 20 years; and second, that the mandatory life sentence under Section 8(2) is unconstitutional because it deprives the court of discretion to consider mitigation. The respondent, through Prosecution counsel Ms. Kanyita, maintained that the victim was proved to be 11 years old, as captured by the trial court's reliance on the birth certificate showing a birth date of 2nd August 2006. The Court held that the victim, aged 11 years and 10 months, had not attained her 12th birthday and therefore fell squarely within Section 8(2); the appellant's argument lacked legal basis. On the constitutional challenge, the Court held that the jurisprudence seeking to extend Muruatetu 1 to mandatory minimum sentences under the Sexual Offences Act has been put to rest by the Supreme Court's decision in Republic v Mwangi (Petition E018 of 2023), which affirmed the legality of the mandatory sentences. The Court found no reason to fault the concurrent findings of the two courts below and dismissed the appeal in its entirety. The judgment is a single judgment of the whole court, delivered on 3rd October 2025.

Key legal issues

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01

Age of the victim and applicable sentencing provision

Holding

The victim, aged 11 years and 10 months, fell under Section 8(2) and not Section 8(3) of the Sexual Offences Act; a child who has not celebrated her 12th birthday remains 11 years old.

Reasoning

The birth certificate (PEX4) showed a birth date of 2/8/2006, making the child 11 years and ten months at the time of the offence. Since she had not achieved her 12th birthday, she remained 11 for legal purposes. The appellant's argument that she should be placed in the 12-14 year bracket to attract the minimum 20-year sentence under Section 8(3) lacked legal basis, and both courts below were concurrent on this finding.

p. 2
02

Constitutionality of the mandatory life sentence for defilement under Section 8(2)

Holding

Following the Supreme Court's decision in Republic v Mwangi, the mandatory life sentence under Section 8(2) of the Sexual Offences Act is lawful and binds this Court.

Reasoning

The Court noted that attempts to extend Muruatetu 1 to mandatory minimum sentences under the Sexual Offences Act had been put to rest by the Supreme Court in Republic v Mwangi (Petition E018 of 2023), which confirmed that Muruatetu 1 did not extend to such sentences and that the mandatory sentences are legal. As a lower court, the Court of Appeal could do nothing despite the appellant's pleas.

p. 3

Legal principles established

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  • For as long as Section 8 of the Sexual Offences Act remains unrepealed, the mandatory sentences therein are legal, and a person convicted of defilement under Section 8(2) can only be sentenced to life imprisonment.
  • The Supreme Court's decision in Republic v Mwangi settled that Muruatetu 1 does not extend to mandatory minimum sentences under the Sexual Offences Act.

Court orders

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  1. 1.The appeal is dismissed in its entirety
On appeal from
High Court of Kenya at Homabay
Homabay Criminal Appeal No. 4 of 2019
Jurisdiction invoked
Second appeal to the Court of Appeal under the Constitution and the Criminal Procedure Code (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngicho v Republic (Criminal Appeal E036 of 2022) [2025] KECA 1626 (KLR)", Case Analysis (2025). null. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1626/eng@2025-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.