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Court of AppealDismissedSecond Appeal (Criminal Appeal from Mombasa High Court; number not stated in judgment)· [2025] KECA 1817 (KLR)

Shally v Republic (Criminal Appeal E008 of 2024) [2025] KECA 1817 (KLR)

Court of Appeal of Kenya
7 November 2025
AMA. K. MurgorFTF. TuiyottPNP. Nyamweya
1,519 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a 30-year defilement sentence, ruling that second appeals cannot relitigate facts already confirmed by two lower courts.

What this practically means

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Executive summary

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This was a second appeal by Hisham Shally against his conviction for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and a sentence of thirty years imprisonment, both upheld on first appeal by the High Court. The complainant, a girl born on 24th July 2008, was defiled on diverse dates between May 2018 and February 2019 by a man she knew well - the appellant, whose identical twin brother Hasham lived in the same household. The appellant, appearing in person, contended that identification was unreliable given weak lighting, the existence of an identical twin, the absence of an identification parade, and the initial report not naming him; and that penetration was not proved because the medical evidence was inconclusive. He also relied on alleged inconsistencies, including the failure to produce the underwear and bedsheet. The Court of Appeal, sitting at Mombasa (Murgor, Tuiyott and Nyamweya, JJA), reiterated that under section 361(a) of the Criminal Procedure Code it deals only with matters of law and is bound by concurrent findings of fact unless shown not to be based on the evidence. The court found the victim's evidence of identification strong and unshaken: she could distinguish the twins, the appellant's glasses were broken at the material time, and the room was lit. The medical evidence of a broken hymen and reddened vaginal abrasions corroborated recent sexual activity. On sentence, the court observed that the victim was 11 years old, so the statutory minimum under section 8(2) was life imprisonment, rendering the 30-year term generous. The appeal was dismissed in its entirety.

Key legal issues

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01

Reliability of visual identification of the perpetrator

Holding

Positive identification was proved: the victim spent considerable time with a well-known assailant in a lit room, could distinguish the identical twin, and her evidence was unshaken in cross-examination.

Reasoning

The victim knew the appellant well, having grown up together, and could distinguish him from his identical twin Hasham. She explained the appellant was not wearing glasses at the time as his had broken. The trial and first appellate courts both found the identification positive, and her evidence remained firm under cross-examination, so the concurrent finding stands.

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02

Proof of penetration

Holding

Penetration was sufficiently proved; the medical evidence of a broken hymen, reddened vaginal abrasions and recent sexual activity corroborated the victim's complaint.

Reasoning

Once the medical evidence revealed a broken hymen and reddened vaginal abrasions, the complaint of sexual assault was shown not to be fictional. The absence of an identification parade did not negate recognition evidence, and the inconsistencies alleged were insufficient to displace the concurrent findings on penetration and identification.

p. 3
03

Adequacy of sentence under section 8(2) of the Sexual Offences Act

Holding

The 30-year sentence was, if anything, generous given that the victim was 11 years old and the statutory minimum under section 8(2) is life imprisonment.

Reasoning

The victim's birth certificate showed she was born on 24th July 2008 and was 11 at the time of giving evidence, having reached her eleventh birthday by the last assault in February 2019. Under section 8(2), defilement of a child of 11 years or younger attracts a minimum of life imprisonment, making the 30-year term generous.

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Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the lower courts unless those findings are shown not to be based on the evidence.
  • Concurrent findings of fact by two courts below will only be interfered with where they are manifestly wrong, such that no reasonable tribunal considering the evidence would reach the same conclusion.

Court orders

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  1. 1.Appeal dismissed - conviction for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act upheld
  2. 2.Sentence of thirty (30) years imprisonment upheld
On appeal from
High Court of Kenya (first appeal)
null
Jurisdiction invoked
Section 361(a) of the Criminal Procedure Code - second appeal on matters of law only

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, "Shally v Republic (Criminal Appeal E008 of 2024) [2025] KECA 1817 (KLR)", Case Analysis (2025). Second Appeal (Criminal Appeal from Mombasa High Court; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1817/eng@2025-11-07

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