Kazungu v Republic (Criminal Appeal E013 of 2024) [2026] KECA 1502 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 15-year defilement sentence, confirming that a child cannot legally consent to sex and mandatory minimum sentences remain valid.
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 discharged its burden of proving the offence of defilement to the required standard
- 2.whether the sentence meted out on the appellant was lawful and proper
Key legal issues
#Whether the age of the complainant was proved despite the discrepancy between the PRC form (17 years) and the Birth Certificate (16 years)
The Birth Certificate was sufficient proof of age; the alleged discrepancy occasioned no prejudice since the sentence is the same whether the victim was 16 or 17.
The Birth Certificate, issued on 18th August 2015, showed the complainant was born on 26th October 2003, making her between 16 and 17 during the charge period. The PRC form's indication of 17 years was therefore not incorrect. Section 8(4) prescribes the same minimum sentence of not less than 15 years for victims aged between 16 and 18 years, so the one-year difference is immaterial.
Whether penetration was established beyond reasonable doubt
Penetration was established by the complainant's testimony and corroborating medical evidence showing a broken hymen opined to result from penetration.
The complainant testified to a sexual relationship with the appellant, who admitted she was at his home on the night of 2nd September 2020. The complainant was a minor without capacity to consent. The PRC and P3 forms confirmed a broken hymen. The Court declined to interfere with the concurrent findings of fact of the two courts below.
Whether the appellant was positively identified as the perpetrator
Identification was by recognition, which is more assuring and reliable than identification of a stranger.
The complainant knew the appellant, who was their neighbour, and recognised him by name. The appellant himself confirmed the complainant was with him on the night of 2nd September 2020. Following Anjononi and Lesarau, recognition based on long acquaintance is the best mode of identification.
Whether the mandatory minimum sentence of 15 years under Section 8(4) of the Sexual Offences Act is unconstitutional
The sentence was lawful and proper; following Republic v. Manyeso and Ngao v. Republic, Muruatetu did not invalidate mandatory or minimum sentences under the Sexual Offences Act.
The Supreme Court in Republic v. Manyeso affirmed that Muruatetu and the guidelines issued therein cannot be authority for holding that all provisions prescribing mandatory or minimum sentences are inconsistent with the Constitution. Upon conviction for defilement of a child aged 16 to 18 years, courts must pass the prescribed sentence of not less than fifteen years.
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 unless the lower courts considered matters they should not have, failed to consider matters they should have, or were plainly wrong on the evidence.
- The Muruatetu decision did not invalidate mandatory or minimum mandatory sentences under the Sexual Offences Act; courts must pass the sentences prescribed thereunder.
- A minor does not have the capacity to consent to sex, and consent or lack of it is not a prerequisite to proof of defilement.
- Age of a defilement victim may be proved by a Birth Certificate; where documentary evidence in the form of a Birth Certificate exists and was first in time, no better evidence is required.
- Recognition of an assailant is more satisfactory, assuring and reliable than identification of a stranger, because it depends on personal knowledge of the assailant.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The Judgment of the High Court at Malindi (Githinji, J.) dated and delivered on 19th September 2023 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Criminal Appeal No. E029 of 2021
- Jurisdiction invoked
- Section 362(1)(a) of the Criminal Procedure Code - second appeal limited to matters of law
Relief refused
#Setting the appellant at liberty on the basis that the relationship with the complainant was voluntary and consensual
A minor lacks the capacity to consent to sex; consent or lack of it is not a prerequisite to proof of defilement
A declaration that the mandatory minimum sentence of 15 years under Section 8(4) of the Sexual Offences Act is unconstitutional
The Supreme Court in Republic v. Manyeso affirmed that Muruatetu did not invalidate mandatory or minimum mandatory sentences under the Sexual Offences Act
Costs
No costs order made 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.
In conclusion, we find that the appeal is devoid of merit and is hereby dismissed in its entirety. We uphold the Judgment of the High Court at Malindi (Githinji, J.) dated and delivered on 19th September 2023. Orders accordingly.
It is trite law that a minor does not have the capacity to consent to sex. Indeed, consent or lack of it is not a prerequisite to proof of defilement.
Our view is that, since there was documentary evidence in the form of a Birth Certificate, which was the first in time to be issued, no better evidence would have been considered as suficient proof of the age of the victim.
The implication thereof is that upon conviction, courts must pass the mandatory sentences that are prescribed under the Sexual Offences Act.
Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
We find no reasons upon which to fault the concurrent finding of fact of the two courts below as regards the sentence that was meted out on the appellant. The same was both lawful and proper, and we uphold it.
Issues in the judgment
#The judgment appears to have been delivered in the future relative to internal dates: the Court states it heard the appeal on 22nd October 2025 and made a call for the respondent's submissions by email on 15th March 2026, yet the judgment is dated 24th July 2026, which is internally consistent but the response timeline is unusually long.
The respondent's submissions were never placed on record and the judgment was written without them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu v Republic (Criminal Appeal E013 of 2024) [2026] KECA 1502 (KLR)", Case Analysis (2026). Criminal Appeal (reference to trial: Sexual Offence Case No. 75 of 2020; first appeal: Criminal Appeal No. E029 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1502/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.