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Court of AppealPartially AllowedCriminal Appeal E046 of 2024

Kazungu v Republic

Court of Appeal
25 September 2026
AMA. K. MurgorKLK. I. LaibutaSOS. O. Okong'o
3,651 words in judgment
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The bottom line

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The Court of Appeal upheld a 20-year defilement sentence but ordered that the appellant's time in remand be deducted from it.

What this practically means

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Executive summary

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This is a second appeal against the High Court's upholding of the appellant's conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and a 20-year sentence imposed by the Kaloleni Principal Magistrate's Court. The prosecution case rested on the complainant's testimony of a sexual relationship with the appellant, her neighbour, medical evidence of penetration and pregnancy, and a DNA report confirming paternity at 99.99%. The Court of Appeal (Murgor, Laibuta and Okong'o, JJA) confined itself to matters of law under section 361 of the Criminal Procedure Code. It declined to entertain grounds raised for the first time on second appeal, including the constitutional challenge to the mandatory minimum sentence, applying settled authority that a litigant may not introduce a wholly new point of law on second appeal. It further held that severity of sentence is a matter of fact beyond challenge on second appeal, and that the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, binding under Article 163(7), confirms the constitutionality of mandatory minimum sentences under the Sexual Offences Act. The appeal succeeded only on the limited point that the trial court failed to expressly account for the appellant's pre-sentence custody from 4th June 2022, contrary to section 333(2) of the Criminal Procedure Code. The appeal was dismissed on conviction and sentence, but the remand period is to be deducted in computing the 20-year term, and the High Court judgment was upheld.

Key legal issues

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01

New points on second appeal

Holding

The Court declined to consider grounds raised for the first time on second appeal, including the constitutional challenge to the mandatory sentence

Reasoning

Relying on Karingo, KCB v Osede, Saggaf, Alfayo Gombe Okello, Sudi Mnalo Mweke and Wachira v Ndanjeru, the Court held that a statutory right of appeal is confined to points of law raised and decided below; fresh issues deprive the appellate court of the assistance of reasoned opinions of the courts below and cannot be entertained absent satisfaction that full investigation of facts would sustain the new plea.

p. 4
02

Constitutionality of mandatory minimum sentence

Holding

Even if entertained, the challenge fails: the Supreme Court in Republic v Joshua Gichuki Mwangi held mandatory minimum sentences under the Sexual Offences Act constitutional, binding the Court under Article 163(7)

Reasoning

Following Ogutu v Republic, the Court noted the Supreme Court categorically upheld mandatory minimum sentences in sexual offences, overruling contrary Court of Appeal decisions. Additionally, the constitutional issue was not preserved before the High Court, precluding its consideration on second appeal.

p. 5
03

Pre-sentence custody under section 333(2) CPC

Holding

The trial court failed to expressly account for the remand period from 4th June 2022; that period must be deducted in computing the 20-year sentence

Reasoning

Although both parties did not address the issue, the Court found from the record that the appellant was remanded from 4th June 2022 for failing to attend DNA testing and nothing showed he was released thereafter. The sentencing court considered mitigation but did not expressly state it had taken the pre-sentence custody into account, contrary to section 333(2) and the Sentencing Policy Guidelines, 2023.

p. 7

Legal principles established

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  • A second appeal is confined to matters of law; the Court will not interfere with concurrent findings of fact unless based on no evidence
  • A litigant may not introduce a wholly new point of law for the first time on second appeal; the Court has no jurisdiction over a point neither argued nor decided below
  • Severity of sentence, whether minimum or maximum, is beyond challenge on second appeal short of illegality
  • Pre-sentence custody must be taken into account in computing a sentence under section 333(2) of the Criminal Procedure Code

Court orders

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  1. 1.Appeal dismissed on both conviction and sentence
  2. 2.The period the appellant was held in custody between 4th June 2022 and the date of sentencing to be taken into account in computing the 20 years imprisonment
  3. 3.Judgment of the High Court (A. K. Ndungu, J.) upheld
On appeal from
High Court of Kenya at Malindi
Criminal Appeal No. E004 of 2023
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law)

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, "Kazungu v Republic", Case Analysis (2026). Criminal Appeal E046 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25

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