Kazungu v Republic
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court may consider grounds raised for the first time on second appeal, including the constitutional challenge to the mandatory minimum sentence
- 2.Whether the severity of the sentence is challengeable on second appeal under section 361 of the Criminal Procedure Code
- 3.Whether the period spent in custody prior to conviction and sentence was taken into account under section 333(2) of the Criminal Procedure Code
Key legal issues
#New points on second appeal
The Court declined to consider grounds raised for the first time on second appeal, including the constitutional challenge to the mandatory sentence
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.
Constitutionality of mandatory minimum sentence
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)
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.
Pre-sentence custody under section 333(2) CPC
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
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.
Legal principles established
#- 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
#- 1.Appeal dismissed on both conviction and sentence
- 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.Judgment of the High Court (A. K. Ndungu, J.) upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- 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)
Relief refused
#Setting aside conviction and sentence / challenge to mandatory minimum sentence under section 8(3) of the Sexual Offences Act
Raised for the first time on second appeal; Supreme Court has held mandatory minimum sentences under the Sexual Offences Act constitutional; severity of sentence is a matter of fact barred on second appeal
Costs
No costs order appears 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.
Having considered the record of appeal, the grounds on which it was anchored, the rival submissions, the cited authorities and the law, we reach the conclusion that the appeal fails on both conviction and sentence and is hereby dismissed, save that the period during which the appellant was held in custody between 4th June 2022 and the date on which he was sentenced shall be taken into account in computing the 20 years imprisonment.
Consequently, the judgment of the High Court of Kenya at Malindi (A. K. Ndungu, J.) delivered on 30th August 2023 be and is hereby upheld. It is so ordered.
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.
the authority and efficiency of an appellate court and especially a final court of appeal are materially enhanced by the reasoned opinions of the courts below
Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody.
Issues in the judgment
#Date of the High Court judgment stated inconsistently: 30th November 2023 in the preamble versus 30th August 2023 in the final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.