1. The Applicant was sentenced to 15 years imprisonment after an appeal against conviction for the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. By an application dated 25/8/2025 supported by an affidavit sworn by the Applicant, the Applicant prays that the court takes into consideration the time that he spent in custody as provided by Section 333 (2) of the Criminal Procedure Code.
3. From the Charge Sheet and the evidence, the Applicant was tried and convicted of defiling a child who was barely fourteen (14) years old. This was affirmed by the High Court in Kakamega HCCR.A. No. 8 of 2018 wherein Njagi J. upheld the conviction vide a Judgement dated 11/7/2019 but reduced the 20 year sentence to 15 years, while citing the court of Appeal in Evans Wanjala Wanyonyi v. Republic [2019] eKLR.
4. Since then, the Supreme Court has pronounced itself on the mandatory nature of the minimum sentence prescribed by the Sexual Offences Act and the Court is bound by the said decision by the apex court.
5. Under Section 8 (3) of the Sexual Offences Act, if a person is convicted of defilement of a child between the age of twelve and fifteen years, he is liable to imprisonment for a term of not less than twenty years.
6. By virtue of the Sexual Offences Act and the pronouncement of the Supreme Court in Republic v. Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others [2024] KESC 34 (KLR), the minimum penalty imposed by the Sexual Offences Act is mandatory. The Supreme Court held:-
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…”
7. Additionally, it is noted that the Applicant had filed an appeal to this Honourable court and that the said appeal was heard and determined in the year 2019. This court therefore lacks jurisdiction to hear the present application as to do so would be to sit on review of a decision of a court of concurrent jurisdiction. In Stephen Kathuri Kimotho & others v. Republic [2021] KEHC 8439 (KLR), the Court stated that:-
“It is my view that the application herein is an abuse of the court process as Justice Muchemi and this court are courts of concurrent jurisdiction and this court cannot review a decision of a court of concurrent jurisdiction. As Ms. Mati rightfully submitted, the recourse available to the applicants is to appeal against the said ruling to the Court of Appeal as it is the one with jurisdiction under article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code and in appreciating the provisions of Article 50(2)(q) of the Constitution of Kenya 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law.”
8. The Applicant had his chance at the High Court and was fortunate enough to have his sentence reduced from the mandatory minimum term of 20 years to 15 years due to the confusion that arose after the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) where it held that the mandatory death sentence in murder cases is unconstitutional.
9. Subsequently, the apex court clarified that their decision related only to murder cases and not to other offences including offences under the Sexual Offences Act. By reason of the confusion, the Applicant got a significant reduction of his sentence. He now seeks a second bite of the cherry.
10. Once the High Court heard and determined the appeal, the court became functus officio and is no longer seized with jurisdiction to hear any application regarding the conviction and sentence. If the Applicant is not satisfied with the court’s decision, his only recourse is to proceed to the Court of Appeal. In Raila Odinga & 2 others v. IEBC & 3 others [2013] eKLR, the Court held:-
“…A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available...”
11. The Applicant’s decision to approach the same court with further applications post Judgement is clearly an abuse of the process of the court more so, bearing in mind the fact that he is a beneficiary of a confusion that led to an unwarranted sentence reduction.
12. His application lacks merit and is hereby dismissed.
2. By an application dated 25/8/2025 supported by an affidavit sworn by the Applicant, the Applicant prays that the court takes into consideration the time that he spent in custody as provided by Section 333 (2) of the Criminal Procedure Code.
3. From the Charge Sheet and the evidence, the Applicant was tried and convicted of defiling a child who was barely fourteen (14) years old. This was affirmed by the High Court in Kakamega HCCR.A. No. 8 of 2018 wherein Njagi J. upheld the conviction vide a Judgement dated 11/7/2019 but reduced the 20 year sentence to 15 years, while citing the court of Appeal in Evans Wanjala Wanyonyi v. Republic [2019] eKLR.
4. Since then, the Supreme Court has pronounced itself on the mandatory nature of the minimum sentence prescribed by the Sexual Offences Act and the Court is bound by the said decision by the apex court.
5. Under Section 8 (3) of the Sexual Offences Act, if a person is convicted of defilement of a child between the age of twelve and fifteen years, he is liable to imprisonment for a term of not less than twenty years.
6. By virtue of the Sexual Offences Act and the pronouncement of the Supreme Court in Republic v. Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others [2024] KESC 34 (KLR), the minimum penalty imposed by the Sexual Offences Act is mandatory. The Supreme Court held:-
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…”
7. Additionally, it is noted that the Applicant had filed an appeal to this Honourable court and that the said appeal was heard and determined in the year 2019. This court therefore lacks jurisdiction to hear the present application as to do so would be to sit on review of a decision of a court of concurrent jurisdiction. In Stephen Kathuri Kimotho & others v. Republic [2021] KEHC 8439 (KLR), the Court stated that:-
“It is my view that the application herein is an abuse of the court process as Justice Muchemi and this court are courts of concurrent jurisdiction and this court cannot review a decision of a court of concurrent jurisdiction. As Ms. Mati rightfully submitted, the recourse available to the applicants is to appeal against the said ruling to the Court of Appeal as it is the one with jurisdiction under article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code and in appreciating the provisions of Article 50(2)(q) of the Constitution of Kenya 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law.”
8. The Applicant had his chance at the High Court and was fortunate enough to have his sentence reduced from the mandatory minimum term of 20 years to 15 years due to the confusion that arose after the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) where it held that the mandatory death sentence in murder cases is unconstitutional.
9. Subsequently, the apex court clarified that their decision related only to murder cases and not to other offences including offences under the Sexual Offences Act. By reason of the confusion, the Applicant got a significant reduction of his sentence. He now seeks a second bite of the cherry.
10. Once the High Court heard and determined the appeal, the court became functus officio and is no longer seized with jurisdiction to hear any application regarding the conviction and sentence. If the Applicant is not satisfied with the court’s decision, his only recourse is to proceed to the Court of Appeal. In Raila Odinga & 2 others v. IEBC & 3 others [2013] eKLR, the Court held:-
“…A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available...”
11. The Applicant’s decision to approach the same court with further applications post Judgement is clearly an abuse of the process of the court more so, bearing in mind the fact that he is a beneficiary of a confusion that led to an unwarranted sentence reduction.
12. His application lacks merit and is hereby dismissed.