REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E003 OF 2024
ALEPER EWESIT...........................................................................................PETITIONER
VERSUS
REPUBLIC................................................................................................RESPONDENT
(Arising from Kakuma Magistrate Court Criminal Case No. E010 of 2023 and Lodwar HCCRA No. E083 of 2023)
JUDGEMENT
Background Facts
1. In the quiet and hallowed chambers of justice, where the clamour of human conflict must submit to the measured scales of truth. The law seeks not only to punish but to establish an enduring peace through finality in determination of disputes presented for its determination.
2. The Petitioner, Aleper Ewesit, while an inmate at Kitale GK Prison bearing the prison number KIT/1257/23/LS, has approached the Court with a constitutional petition seeking to rewrite the final chapter of his criminal culpability. He pleads for a lesser, more lenient sentence under Article 50(2)(p) and (q) of the Constitution, hoping that the high constitutional declarations of this land will unlock the gates of his life imprisonment.
3. The origin of this controversy is traceable to Kakuma CMCC No. E010 of 2023, where the Petitioner was arraigned in Criminal Case No. E010 of 2023. He stood charged with an offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were given to be that on the 7 th day of April 2023, at Kabokorit Village in Turkana West Sub-County, the Petitioner intentionally caused his penis to penetrate the vagina of P.L.N., a child aged four (4) years.
4. On the 12 th day of April 2023, the Petitioner entered a plea of not guilty before the Honourable I. K. Rono, Resident Magistrate. The trial subsequently commenced on the 10 th day of May 2023 before the Honorable C. A. Mayamba, SPM. The prosecution called its first witness, Dorcas Akiru, the mother of the victim and the aunt of the Petitioner. She recounted returning home on the 7 th April 2023 only to hear her daughter’s screams from the dark lagga behind the fence. She proceeded to the scene and found the petitioner on the act and the child with sperms stains on her legs.
5. Upon confronting the Petitioner, he pleaded for forgiveness while claiming he was drunk and had not fully inserted his penis. During cross-examination, the petitioner directly pleaded for forgiveness and admitted inserting his penis fully to the minor. Aware of the futility of further denial, the Petitioner chose to stop the trial and change his plea to one of guilty.
6. The trial magistrate twice had the charges read over afresh and translated in the Turkana language and warned him of the mandatory nature of the life sentence that hung over his confession. With unfaltering resolve, the Petitioner twice admitted the charge and confirmed the truth of the prosecution’s facts. He was consequently convicted on his own unequivocal plea of guilty and sentenced to serve life imprisonment.
7. He was dissatisfied with the outcome and lodged Criminal Appeal No. E083 of 2023 urging the appellate court to mitigate the severity of his punishment. The High Court, having fully considered the appeal on its merits, dismissed it in its entirety, finding the sentence to be legally sound and proportionate.
8. The Petitioner has once more returned to Court vide the instant petition seeking for a resentencing and/or a more lenient sentence. The petition and its prayers are informed by and grounded on the decision of the court in Machakos HCCPET No. E107 of 2021, Phillip Mueke Maingi and five others vs DPP. The issue in that petition, as consolidated, was the constitutionality of the mandatory sentences provided under the sexual offences Act and the court concluded that while the minimum mandatory sentences where not necessarily un constitutional, an interpretation that deprives the court of discretion to individualise the punishment, based on the circumstances of each case would run afoul the constitution. The court is thus urged to consider the sentence meted on the petitioner by the trial court and confirmed on appeal to the High Court and to tinker with the same.
9. The Respondent, through the Office of the Director of Public Prosecutions strongly objects and opposes the petition. It is their case that the petition is an abuse of the court process and barred by the doctrine of res judicata , and an attempt to subvert the finality of a voluntary plea of guilty.
Analysis and Determination
10. The singular, pivotal question that commands the determination by the Court is whether the Petitioner is entitled to the relief sought, being, the possibility of a more lenient sentence away from that imposed by the trial court and confirmed on appeal decided by this court. To come to its resolution, the court must determine whether a constitutional petition lies to challenge a decision by the High Court in its appellate jurisdiction.
11. Tritely, the law is not a garment to be donned and discarded at the whim of convenience, nor is the Constitution a tool to shatter the sacred finality of concluded judicial processes.
12. The Petitioner, having admitted his guilt and seen his subsequent appeal dismissed, can now not seek to use a constitutional petition to escape the consequences of his conviction pursuant to the due process.
13. A plea of guilty, when entered voluntarily and with full comprehension of its consequences, is a solemn surrender to the truth and a formal waiver of the right to a full trial. Section 348 of the Criminal Procedure Code (Cap 75) stands as a firm sentinel against the reopening of such convictions, declaring in absolute terms that no appeal shall be allowed in the case of an accused person who has unequivocally pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
14. The trial record reveals that the learned magistrate followed the vital safeguards set out in Adan vs Republic (1973) EA 445 . The charges were explained in the Petitioner’s native Turkana language, he was twice cautioned of the gravity of the life sentence, and he explicitly affirmed the detailed facts of the defilement. As confirmed by the Court of Appeal in Alexander Likoye Malika vs Republic [2015] eKLR , once a guilty plea is recorded under such scrupulous safeguards, the conviction becomes unassailable, and the door to appeal is closed, save for narrow challenges regarding the legality of the sentence.
15. Flowing from that established position of the law, to allow the Petitioner to use a constitutional petition to bypass the statutory bar. Doing so would undermine the integrity of the judicial system and turn the plea of guilty into a mere tactical gamble.
16. Second, the Petitioner’s quest for a reduced sentence is completely barred by the doctrine of res judicata and the principle of judicial finality. The Petitioner did not merely accept his sentence at the trial level; he actively exercised his right of appeal to the High Court in Criminal Appeal No. E083 of 2023, where his arguments regarding sentence mitigation were fully heard and dismissed. The issue of his sentence has therefore been adjudicated to its logical and legal conclusion by a court of competent jurisdiction. A contestation as to the legality, appropriates or proportionality lies not with this court but at the appellate level.
17. The doctrine of res judicata , which demands that there must be an end to litigation for the preservation of public policy, applies with equal force to constitutional as in civil. As the Supreme Court of Kenya beautifully articulated in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR , while the doctrine of res judicata must be applied with heighted circumspection in constitutional matters, a court will not permit a party to relitigate issues that were directly and substantially decided in previous proceedings, unless refusing to do so would occasion a gross miscarriage of justice.
18. The High Court in Rigathi Gachagua & 2 Others vs Republic [2024] KEHC 1746 (KLR) emphasized that constitutional petitions cannot be utilized to circumvent judicial finality or to seek a second bite at the cherry after an appeal has been lost. The Petitioner’s sentence has already been weighed in the balance of appellate review and found to be lawful. To allow this petition to proceed would be to permit an abuse of the court process, creating an endless loop of litigation where no judgment is ever truly final.
19. Thirdly, the Petitioner’s reliance on the jurisprudential legacy of Philip Mueke Maingi & 5 Others vs Director of Public Prosecutions & Another [2022] eKLR and the broader Muruatetu doctrine is entirely misplaced. In its definitive clarifying Directions of 6 th July 2021, the Supreme Court in Francis Karioko Muruatetu & Another vs Republic; Katiba Institute & 5 Others (Amicus Curiae) (Directions) [2021] KESC 31 (KLR) explicitly ruled that the Muruatetu decision applies solely to the mandatory death penalty for murder cases under Section 204 of the Penal Code. The Supreme Court made it clear that this revolutionary discretion did not extend to sexual offences.
20. The Supreme Court in Republic vs Joshua Gichuki Mwangi [2024] eKLR has reinforced that the statutory sentencing guidelines of the Sexual Offences Act remain valid, constitutional, and binding. That the legislature, in its wisdom, prescribed a mandatory life sentence for the defilement of children aged eleven years and below to protect the most vulnerable members of society from unspeakable harm. Under Article 53(2) of the Constitution, the best interests of the child are of paramount importance, and this Court cannot apply a misplaced sense of mercy to defeat the clear protection the law affords to a violated four-year-old child.
21. In the upshot, the court reiterates that having voluntarily confessed to the violation of a child, and having had his subsequent appeal fully heard and dismissed, the Petitioner cannot now use this Court to reopen what has been permanently sealed. Consequently, the Petition is adjudged incompetent and meritless is hereby dismissed.
Dated, signed and delivered virtually this 29 th day of June, 2026
Patrick J O Otieno
Judge
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E003 OF 2024
ALEPER EWESIT...........................................................................................PETITIONER
VERSUS
REPUBLIC................................................................................................RESPONDENT
(Arising from Kakuma Magistrate Court Criminal Case No. E010 of 2023 and Lodwar HCCRA No. E083 of 2023)
JUDGEMENT
Background Facts
1. In the quiet and hallowed chambers of justice, where the clamour of human conflict must submit to the measured scales of truth. The law seeks not only to punish but to establish an enduring peace through finality in determination of disputes presented for its determination.
2. The Petitioner, Aleper Ewesit, while an inmate at Kitale GK Prison bearing the prison number KIT/1257/23/LS, has approached the Court with a constitutional petition seeking to rewrite the final chapter of his criminal culpability. He pleads for a lesser, more lenient sentence under Article 50(2)(p) and (q) of the Constitution, hoping that the high constitutional declarations of this land will unlock the gates of his life imprisonment.
3. The origin of this controversy is traceable to Kakuma CMCC No. E010 of 2023, where the Petitioner was arraigned in Criminal Case No. E010 of 2023. He stood charged with an offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were given to be that on the 7 th day of April 2023, at Kabokorit Village in Turkana West Sub-County, the Petitioner intentionally caused his penis to penetrate the vagina of P.L.N., a child aged four (4) years.
4. On the 12 th day of April 2023, the Petitioner entered a plea of not guilty before the Honourable I. K. Rono, Resident Magistrate. The trial subsequently commenced on the 10 th day of May 2023 before the Honorable C. A. Mayamba, SPM. The prosecution called its first witness, Dorcas Akiru, the mother of the victim and the aunt of the Petitioner. She recounted returning home on the 7 th April 2023 only to hear her daughter’s screams from the dark lagga behind the fence. She proceeded to the scene and found the petitioner on the act and the child with sperms stains on her legs.
5. Upon confronting the Petitioner, he pleaded for forgiveness while claiming he was drunk and had not fully inserted his penis. During cross-examination, the petitioner directly pleaded for forgiveness and admitted inserting his penis fully to the minor. Aware of the futility of further denial, the Petitioner chose to stop the trial and change his plea to one of guilty.
6. The trial magistrate twice had the charges read over afresh and translated in the Turkana language and warned him of the mandatory nature of the life sentence that hung over his confession. With unfaltering resolve, the Petitioner twice admitted the charge and confirmed the truth of the prosecution’s facts. He was consequently convicted on his own unequivocal plea of guilty and sentenced to serve life imprisonment.
7. He was dissatisfied with the outcome and lodged Criminal Appeal No. E083 of 2023 urging the appellate court to mitigate the severity of his punishment. The High Court, having fully considered the appeal on its merits, dismissed it in its entirety, finding the sentence to be legally sound and proportionate.
8. The Petitioner has once more returned to Court vide the instant petition seeking for a resentencing and/or a more lenient sentence. The petition and its prayers are informed by and grounded on the decision of the court in Machakos HCCPET No. E107 of 2021, Phillip Mueke Maingi and five others vs DPP. The issue in that petition, as consolidated, was the constitutionality of the mandatory sentences provided under the sexual offences Act and the court concluded that while the minimum mandatory sentences where not necessarily un constitutional, an interpretation that deprives the court of discretion to individualise the punishment, based on the circumstances of each case would run afoul the constitution. The court is thus urged to consider the sentence meted on the petitioner by the trial court and confirmed on appeal to the High Court and to tinker with the same.
9. The Respondent, through the Office of the Director of Public Prosecutions strongly objects and opposes the petition. It is their case that the petition is an abuse of the court process and barred by the doctrine of res judicata , and an attempt to subvert the finality of a voluntary plea of guilty.
Analysis and Determination
10. The singular, pivotal question that commands the determination by the Court is whether the Petitioner is entitled to the relief sought, being, the possibility of a more lenient sentence away from that imposed by the trial court and confirmed on appeal decided by this court. To come to its resolution, the court must determine whether a constitutional petition lies to challenge a decision by the High Court in its appellate jurisdiction.
11. Tritely, the law is not a garment to be donned and discarded at the whim of convenience, nor is the Constitution a tool to shatter the sacred finality of concluded judicial processes.
12. The Petitioner, having admitted his guilt and seen his subsequent appeal dismissed, can now not seek to use a constitutional petition to escape the consequences of his conviction pursuant to the due process.
13. A plea of guilty, when entered voluntarily and with full comprehension of its consequences, is a solemn surrender to the truth and a formal waiver of the right to a full trial. Section 348 of the Criminal Procedure Code (Cap 75) stands as a firm sentinel against the reopening of such convictions, declaring in absolute terms that no appeal shall be allowed in the case of an accused person who has unequivocally pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
14. The trial record reveals that the learned magistrate followed the vital safeguards set out in Adan vs Republic (1973) EA 445 . The charges were explained in the Petitioner’s native Turkana language, he was twice cautioned of the gravity of the life sentence, and he explicitly affirmed the detailed facts of the defilement. As confirmed by the Court of Appeal in Alexander Likoye Malika vs Republic [2015] eKLR , once a guilty plea is recorded under such scrupulous safeguards, the conviction becomes unassailable, and the door to appeal is closed, save for narrow challenges regarding the legality of the sentence.
15. Flowing from that established position of the law, to allow the Petitioner to use a constitutional petition to bypass the statutory bar. Doing so would undermine the integrity of the judicial system and turn the plea of guilty into a mere tactical gamble.
16. Second, the Petitioner’s quest for a reduced sentence is completely barred by the doctrine of res judicata and the principle of judicial finality. The Petitioner did not merely accept his sentence at the trial level; he actively exercised his right of appeal to the High Court in Criminal Appeal No. E083 of 2023, where his arguments regarding sentence mitigation were fully heard and dismissed. The issue of his sentence has therefore been adjudicated to its logical and legal conclusion by a court of competent jurisdiction. A contestation as to the legality, appropriates or proportionality lies not with this court but at the appellate level.
17. The doctrine of res judicata , which demands that there must be an end to litigation for the preservation of public policy, applies with equal force to constitutional as in civil. As the Supreme Court of Kenya beautifully articulated in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR , while the doctrine of res judicata must be applied with heighted circumspection in constitutional matters, a court will not permit a party to relitigate issues that were directly and substantially decided in previous proceedings, unless refusing to do so would occasion a gross miscarriage of justice.
18. The High Court in Rigathi Gachagua & 2 Others vs Republic [2024] KEHC 1746 (KLR) emphasized that constitutional petitions cannot be utilized to circumvent judicial finality or to seek a second bite at the cherry after an appeal has been lost. The Petitioner’s sentence has already been weighed in the balance of appellate review and found to be lawful. To allow this petition to proceed would be to permit an abuse of the court process, creating an endless loop of litigation where no judgment is ever truly final.
19. Thirdly, the Petitioner’s reliance on the jurisprudential legacy of Philip Mueke Maingi & 5 Others vs Director of Public Prosecutions & Another [2022] eKLR and the broader Muruatetu doctrine is entirely misplaced. In its definitive clarifying Directions of 6 th July 2021, the Supreme Court in Francis Karioko Muruatetu & Another vs Republic; Katiba Institute & 5 Others (Amicus Curiae) (Directions) [2021] KESC 31 (KLR) explicitly ruled that the Muruatetu decision applies solely to the mandatory death penalty for murder cases under Section 204 of the Penal Code. The Supreme Court made it clear that this revolutionary discretion did not extend to sexual offences.
20. The Supreme Court in Republic vs Joshua Gichuki Mwangi [2024] eKLR has reinforced that the statutory sentencing guidelines of the Sexual Offences Act remain valid, constitutional, and binding. That the legislature, in its wisdom, prescribed a mandatory life sentence for the defilement of children aged eleven years and below to protect the most vulnerable members of society from unspeakable harm. Under Article 53(2) of the Constitution, the best interests of the child are of paramount importance, and this Court cannot apply a misplaced sense of mercy to defeat the clear protection the law affords to a violated four-year-old child.
21. In the upshot, the court reiterates that having voluntarily confessed to the violation of a child, and having had his subsequent appeal fully heard and dismissed, the Petitioner cannot now use this Court to reopen what has been permanently sealed. Consequently, the Petition is adjudged incompetent and meritless is hereby dismissed.
Dated, signed and delivered virtually this 29 th day of June, 2026
Patrick J O Otieno
Judge