Kazungu v Republic (Criminal Appeal E082 of 2023) [2025] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 20-year defilement conviction, ruling that DNA evidence is not required to prove the 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 prosecution proved its case against the appellant beyond reasonable doubt to warrant a conviction
- 2.Whether the sentence meted on the appellant was lawful
- 3.Whether issues raised for the first time on second appeal should be considered
Key legal issues
#Scope of second appeal under section 361 of the Criminal Procedure Code and treatment of issues raised for the first time on appeal
The Court declined to consider grounds raised for the first time on second appeal, confining itself to matters of law and the two framed issues.
Relying on section 361 CPC and authorities including Karingo v Republic, Kenya Commercial Bank Ltd v James Osede, Alwi A. Saggaf v Abed A. Algeredi, Wachira v Ndanjeru and Sudi Mnalo Mweke v Republic, the Court held that where the right of appeal is statutory it is confined to points of law raised and decided below; new points prejudice parties who lack fair notice, involve untested facts, and amount to trial by instalments.
Proof of the ingredients of defilement: age, identity and penetration
All three ingredients were proved: age (15 years) by the age assessment report admissible under sections 33(b) and 77(1) of the Evidence Act; identity by recognition; penetration by the complainant's direct evidence and the clinical officer's findings.
The Court applied George Opondo Olunga on ingredients, Republic v Ronoh Khalif Ahmed and the Evidence Act provisions on the admissibility of medical reports produced by persons other than the maker, noting no objection was raised at trial. Recognition was held more reliable than identification of a stranger per Anjononi. The absence of a DNA test did not weaken the case, section 36(1) of the Sexual Offences Act being discretionary, not mandatory.
Legality of the mandatory minimum sentence and scope for sentence review on second appeal
Severity of sentence is a matter of fact excluded from second appeal; the Court has no discretionary power to reconsider the sentence unless it is unlawful. The sentence of 20 years was lawful.
Section 361(1)(a) CPC expressly provides that severity of sentence is a matter of fact. MGK v Republic and Oyoko v Republic confirm the bar; Republic v Joshua Gichuki Mwangi (Supreme Court) restores the mandatory minimum sentences under section 8 of the Sexual Offences Act, so the ground fails.
Legal principles established
#- A second appeal to the Court of Appeal is confined to points of law; the Court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence.
- A DNA test is not a pre-requisite for proof of penetration in a defilement case; penetration may be proved by direct or circumstantial evidence.
- Severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code and is not a legal issue open for consideration by the Court of Appeal on second appeal.
- Points of law not raised in the courts below will not ordinarily be entertained on appeal unless the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.
- Under sections 33(b) and 77(1) of the Evidence Act, a medical report such as an age assessment report is admissible whether or not its maker is called, and need not be produced by the maker.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Garsen (R. Nyakundi, J) delivered on 15th September 2021 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Appeal No. 57 of 2019
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Reversal of conviction on the ground that no DNA test was conducted
Settled law that a DNA test is not necessary to prove penetration; penetration may be proved by direct or circumstantial evidence
Interference with the 20-year sentence as a mandatory minimum
Severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code and not open for consideration on second appeal
Determination of grounds raised for the first time on second appeal
Second appeal is confined to matters of law; new issues not raised below come too late in the day
Costs
No costs order was 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.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
we find that the appeal has no merit and is hereby dismissed in its entirety. Consequently, the judgment of the High Court of Kenya at Garsen (R. Nyakundi, J) delivered on 15th September 2021 is hereby upheld. It is so ordered.
That provision is not couched in mandatory terms and DNA evidence is not the only evidence by which commission of a sexual ofience may be proved.
The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid.
As regards the sentence, under section 361(1) of the Criminal Procedure Code severity of sentence is a matter of fact and therefore not a legal issue open for consideration by this Court on second appeal.
…the discretion to allow a point of law to be taken for the first time on appeal will not be exercised unless full justice can be done between the parties.
Issues in the judgment
#The case number of the present second appeal before the Court of Appeal is not stated in the judgment; only the courts below are numbered.
The judgment contains no costs order notwithstanding the dismissal of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu v Republic (Criminal Appeal E082 of 2023) [2025] KECA 47 (KLR)", Case Analysis (2025). Criminal Appeal (undated record; second appeal from High Court Criminal Appeal No. 57 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/47/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.