Kazungu v Republic

who testied that the appellant, a neighbour, approached her on the road in January 2021, professed love, and began a relationship with her; that, in February 2021, she went to his house in the night and, at his request, they both undressed and had sexual intercourse; that he penetrated her vagina with his penis; that she continued visiting him at night for sexual intercourse on several occasions; and that, when she missed her periods and suspected pregnancy, she informed her mother; that she was taken to hospital for medical examination, which conrmed the pregnancy. She identied the appellant in court as the father of her child. 5. The complainant’s father, MKT (PW2), testied that his daughter was born on 9th January 2008, produced her birth certicate and stated that, after the school reported her pregnancy, the complainant named the appellant as the person responsible. PW2 accompanied the complainant to report the matter to the police and, thereafter, accompanied the police to the appellant’s home and identied him, after which he was arrested and taken to the police station. The complainant was thereafter taken to hospital for medical examination. 6. PW3, Mwangolo Chigulu, a clinical ocer, testied that, upon examining the complainant, he found that her hymen was broken; that a pregnancy test was positive; and that a scan disclosed a single pregnancy of about 29 weeks. PW3 conrmed that penetration had occurred, and that the pregnancy resulted from sexual intercourse. He produced the P3 form, treatment notes and other medical documents into evidence. 7. The investigating ocer, PC Winnie Murrey (PW4), testied that, after the report was made, she interrogated the complainant before proceeding to arrest and charge the appellant; that the complainant later gave birth; that a DNA test was conducted, and that the results conrmed that the appellant was the biological father of the child. PW4 also presented the DNA report as an exhibit. 8. The appellant gave an unsworn statement in his defence. He stated that he was arrested in June 2021 while at work and taken to Kaloleni police station; that the charge against him was false and arose from a land dispute and a grudge between the complainant’s family and his father, and that he was arrested on the same day they quarrelled. 9. In its judgment dated 28th November 2022, the trial court (Hon. R. M. Amwayi, SRM) identied the three essential ingredients for delement, namely: the complainant’s age; penetration; and positive identication of the perpetrator. On the issue of age, the court found that the complainant was 13 years old at the time of the oence, relying on the testimony of the complainant and her father, as well as the birth certicate produced as an exhibit showing her date of birth as 9th January 2008. Regarding penetration, the court accepted the complainant’s testimony that the appellant had sexual intercourse with her on several occasions, which was corroborated by the clinical ocer’s medical evidence. The court therefore held that penetration was proved beyond reasonable doubt. As to identication, the trial court noted that the complainant knew the appellant as her neighbour and boyfriend, and that the complainant’s father also identied him. More crucial, the court relied on the DNA report, which conrmed with 99.99% certainty that the appellant was the biological father of the child born to the complainant. Accordingly, the appellant’s defence of the alleged land dispute and grudge was dismissed as unsubstantiated, and as a mere denial. The court concluded that the prosecution had proved its case beyond reasonable doubt, convicted the appellant on the main count of delement and sentenced him to 20 years imprisonment. 10. Aggrieved by the conviction and sentence, the appellant led an appeal in the High Court at Malindi, to wit, Criminal Appeal No. E004 of 2023 on the grounds that the learned trial magistrate erred in law and facts by: failing to consider that the conviction was against the weight of the evidence adduced by the prosecution, and hence the sentence was manifestly harsh and excessive in all the circumstances; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 2

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failing to consider sharp contradictions contrary to section 163(1) (c) of the Evidence Act; failing to consider that there was no cogent evidence to connect the appellant to the commission of the alleged oence; failing to adequately consider the appellant’s defence evidence; and by failing to consider that the appellant had reasonably established a defence under section 8(5) (b) of the Sexual Offences Act. 11. In its judgment dated 30th November 2023, the High Court (A. K. Ndungu, J.) dismissed the appeal in its entirety. Regarding the issue of the complainant’s age, the court found that the birth certicate was an uncertied copy and therefore inadmissible, but relied on the father’s testimony, the P3 form, and the complainant’s apparent age to conclude that she was 13 years old. The court further found that penetration was proved through the complainant’s clear testimony, which was corroborated by medical evidence of a broken hymen and pregnancy. Regarding identication, the learned Judge ruled that the DNA report was inadmissible because it was not produced by the maker, but the court still found that the appellant was positively identied by the complainant by recognition as their wellknown neighbour and boyfriend. 12. On the appellant’s defence, the learned Judge rejected his alleged deception by the complainant who, according to him, behaved in a manner to suggest that she was an adult. Likewise, the appellant’s alleged violation of his right to legal representation was rejected. Accordingly, the learned Judge upheld the conviction and sentence, there having been no basis for interference therewith. 13. Still aggrieved, the appellant led the instant appeal vide the undated Memorandum of Appeal led on 10th September 2024 followed by an undated Amended Grounds of Appeal in which he advanced the following grounds, which we consider necessary to replicate verbatim: “ 1. That the learned high court Judge erred in law by upholding my conviction yet the sentence which was imposed on me is a mandatory maximum sentence which does not meet the dictates of the Constitution. 2. That whether the trial magistrate had legitimate power of jurisdiction to exercise discretion. 3. That whether the trial magistrate did consider that I am a rst oender. 4. That may this court be pleased to deduct the period I spent in remand custody pursuant to section 333(2) of the CPC.” 14. Along with his undated Amended Grounds, the appellant led undated written submissions, which we duly considered. 15. On her part, counsel for the respondent, Ngina Mutua (Assistant Director of Public Prosecutions), led written submissions and a list of authorities dated 4th March 2026. 16. Our mandate on a second appeal, as is the one before us, is conned to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence.” 17. Having considered the record of appeal, the grounds on which it is anchored, the rival submissions and the law, we reach the conclusion that, except for the severity of sentence (which is a matter of fact) and the related question as to whether the time spent in custody before conviction and sentence was https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 3

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taken into account (which is a matter of law), all the other grounds of appeal were raised for the rst time on 2nd appeal to this Court. 18. The question of whether a party may, on appeal, take a point not raised in the court below has engaged this Court on more than one occasion. In Kenya Commercial Bank Ltd v James Osede [1982] eKLR, Hancox JA articulated the foundational rule, holding that where the right of appeal is statutory, it must be conned to points of law that were raised before, and decided by, the trial court. The Court went further, declaring that it is not permissible for matters and issues that were not raised at trial to be ventilated for the rst time on appeal, and that to permit an appellant to introduce such an issue in reply, without any prior notice to the opposing party, is improper and ought not to form the basis of an appellate decision. 19. The prejudicial dimension of this principle was examined with particular clarity by Forbes VP in Alwi A Saggaf v Abed A Algeredi [1961] EA 767. His Lordship observed that where the minds of the parties had never been directed to an issue at trial, and where that issue had surfaced only in counsel's reply at the close of the rst appeal, the appellant could not be said to have had fair notice of it, and the appellate court could not be satised that the facts, had they been fully investigated, would have supported the new plea. It was therefore his view that the learned judge ought neither to have allowed the issue to be raised nor to have decided the appeal upon it. 20. This Court revisited the same principle in Alfayo Gombe Okello v Republic [2010] eKLR, rearming the imperative that all issues in contention must be raised at the earliest available opportunity. Where an issue had lain dormant throughout the proceedings at rst instance, only to be raised for the rst time on second appeal, and where the appellant oered no explanation for his earlier omission, the Court held that the issue had not been raised at the earliest opportunity, as it both could and should have been. 21. More recently, in Sudi Mnalo Mweke v Republic [2023] KECA 1527 (KLR), this Court expressly aligned itself with the rule laid down by its predecessor in Alwi Abdulrehman Saggaf v Abed Ali Algeredi [1961] EA 767. The guiding principle there established was that the practice of raising on appeal a point of law not argued before the court below ought not to be countenanced unless the appellate court is satised beyond doubt that the facts, had they been fully investigated, would have sustained the new plea. Undergirding that holding was a broader statement of appellate principle: that the authority and eciency of an appellate court and especially a nal court of appeal are materially enhanced by the reasoned opinions of the courts below; that to permit parties to arrive at the appellate stage with entirely fresh arguments is, in eect, to deprive the court of the very assistance it is entitled to expect; and that it has been settled law for the better part of a century that a litigant may not introduce a wholly new point of law for the rst time on 2nd appeal, the Court having no jurisdiction to determine a point that was neither argued nor decided in the two courts below. 22. The same line of reasoning was maintained in Wachira v Ndanjeru (1987) KLR 252, where Platt JA, speaking for this Court, articulated the governing discretionary principles with characteristic economy. His Lordship held that the discretion to permit a new point of law to be taken on appeal would not be exercised unless full justice could be done as between the parties; that it would not ordinarily be exercised where the point would entail the investigation of disputed facts that were never tested at trial; and that a party would not be permitted on appeal to advance a case wholly inconsistent with the one he had advanced at rst instance, even if the evidence on the record were capable of supporting the new case. 23. For these reasons, and on the authority of the afore-cited decisions, this Court respectfully declines to consider or pronounce itself upon the new issues raised for the rst time on second appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 4

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24. On severity of the sentence complained of, section 361 of the Criminal Procedure Code reads: 361. Second appeals 1) 25. A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section— a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence. In Joseph Etabo v Republic [2009] KECA 269 (KLR), this Court held that: “ These grounds ... are based on “facts”, not law. As we have stated, this is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code we are enjoined to consider only matters of law and not matters of fact.” 26. 27. Even if we were to view grounds 1 and 2 in the context of section 361(1) (b) of the Criminal Procedure Code despite having been raised for the rst time on 2nd appeal essentially challenging the sentence on constitutional grounds that the minimum sentence prescribed under section 8(3) of the Sexual Offences Act deprived the trial court of the discretion to determine the appropriate sentence in the circumstances, that issue nds answer in Ogutu v Republic [2025] KECA 336 (KLR) where this Court held that: “ 22. These are constitutional arguments. Until recently, they found a foothold in our jurisprudence including from this Court. However, that trend was decidedly halted by the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). In that case, the Supreme Court categorically held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to go below the statutory minimum sentences in sexual oences …. 24. Following the doctrine of stare decisis as provided for under Article 163(7) of the Constitution, this decision by the Supreme Court is binding on this Court and overrules the recent decisions of this Court holding otherwise. 25. There is a second reason for rejecting the appellant’s appeal on constitutional grounds. He is only raising it before us for the rst time. As the Supreme Court re-conrmed in the Joseph Gichuki Mwangi Case, this Court lacks jurisdiction to entertain any issue that was not rst raised on the rst appeal at the High Court. In the present appeal, the appellant did not preserve the question of unconstitutionality of the sentence imposed before the High Court. We are, thus, precluded from considering it on a second appeal.” Indeed, the law is long settled that severity of sentence, whether minimum or maximum is, by dint of section 361(1) of the Criminal Procedure Code, and short of illegality, beyond challenge on 2nd appeal to this Court. Accordingly, the two grounds fail. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 5

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28. Turning to the 4th and nal question of whether the time served in custody prior to the appellant’s conviction was taken into account, we hasten to acknowledge its legitimacy. Be that as it may, the appellant and the respondent failed to address themselves on this issue which would ordinarily be treated as having been abandoned. 29. In principle, time served in custody prior to conviction is an indispensable factor for consideration by a court determining an appropriate sentence as contemplated in section 333 (2) of the Criminal Procedure Code, which provides that: 333. Warrant in case of sentence of imprisonment 1) … …; 2. Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 30. The Sentencing Policy Guidelines, 2023, at paragraphs 2.3.18 – 19, emphasize the trial court’s obligation to take into account the pre-sentence custody period served in the following words: “ Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the oence committed. This also applies to those who are charged with oences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond. Upon determining the period of imprisonment to impose upon an oender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented oenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.” 31. In the present case, it is discernible from the record that the appellant was arrested on 15th October 2021. After his arraignment and plea of not guilty on 9th December 2021, the trial court ordered that the appellant be released on a bond of Kshs. 100,000 with surety or a cash bail of Kshs. 50,000. He was. On 20th June 2022, the trial court granted the prosecution’s request for DNA testing of the accused, the complainant and the complainant’s child. However, at the next mention to conrm DNA testing on 4th June 2022, the court was informed that both the appellant and the complainant had failed to present themselves for DNA testing, and the prosecution voiced concerns that the appellant may have been interfering with the complainant. On his part, the appellant stated that even though he had received the orders to present himself for DNA testing, he was not at home that day. Accordingly, the trial court ordered that the appellant be remanded at Kaloleni Police Station from 4th June 2022 until the DNA sampling and testing was done, and until the complainant was traced. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 6

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32. We nd nothing on record to suggest that the appellant was set at liberty after 4th June 2022. We also take to mind the fact that, upon the appellant’s conviction, the matter was scheduled for sentencing on 28th November 2022. In mitigation, the appellant asked for the court’s leniency, and stated that he was the rst born in his family who depended on him. The trial court stated that it had considered the appellant’s mitigation before sentencing him to 20 years imprisonment, but failed to expressly state that it had taken into account the pre-sentence period during which the appellant was remanded in custody pending trial. 33. 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. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR ........................ JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ........................ JUDGE OF APPEAL S. O. OKONG’O ........................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1814/eng@2026-09-25 7

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