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JudgmentPaul Njoroge Kamau VS The Republic7 min read

Paul Njoroge Kamau VS The Republic

High Court at Nyahururu High Court · · Lilian Mutende


  1. Paul Njoroge Kamau, the Applicant, was arraigned for having committed a sexual offence, defilement.  After full trial he was found guilty, convicted and sentenced to life imprisonment, a sentence that was affirmed by the High Court.
  2. Aggrieved, he formally appealed to the Court of Appeal, however, the decision of the two (2) Courts was not overturned.  In the result he has approached this court seeking review of the sentence so that he can benefit from a definite sentence.
  3. Subsequently, he filed submissions mitigating on sentence.  He urged that the sentence meted out, life imprisonment, is legal and lawful, but it is not the only prescribed sentence by law for the offence.  That recent developments in law have shown that courts can divert from the mandatory minimum sentences enshrined in the Sexual Offences Act.  Reliance was placed on Phillip Maingi & 5 Others v Director of Public Prosecutions & Attorney General, Petition No. E017 of 2021; where Odunga J (as he then was) stated that;

“A study of the offences under the said Act reveals that the Act prescribes minimum mandatory sentences in several sections.”

  1. That minimum mandatory sentences do not permit the court to consider peculiar circumstances of the case depriving the court to consider a lesser sentence.  That sexual offenders qualify to be considered for probation.  And, if that is the case minimum sentences are not justified.  That the fact that a trial court may err in imposing a sentence ought not be a reason for taking away judicial discretion.
  2. Acknowledging that Muratetu 2 did clarify the applicability of resentencing, the Applicant argues that the Supreme Court in Muruatetu 2 (Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions)) did not address itself to the constitutionality of the mandatory minimum sentences, but, only clarified that Muruatetu 2 only dealt with murder and it didn’t hold that the High Court ought not apply the reasoning in Muruatetu 1 (Francis Karioko Muruatetu & another v Republic [2017] eKLR).
  3. It is urged that this court has jurisdiction and discretion to alter the sentence accorded by the trial court and affirmed by the Supreme Court.
  4. If persuaded, the Applicant calls upon the court to consider time spent in custody as provided by Section 333(2) of the Criminal Procedure Code.  He relies on Joshua Gichuki Mwangi, Criminal Appeal No. 84 of 2015 where the Court of Appeal stated that;

“courts have a duty to dispense justice not only to the complainant but also to the accused person.”

  1. That the sentence of life imprisonment does not support the objective of sentencing which are reformation and rehabilitation as provided by sentencing policy guidelines direction 4.1.
  2. The Applicant proceeded to mitigate that he was imprisoned at the age of 43 years; he is 59 years old and has reformed.
  3. In response thereto learned Prosecution Counsel, Mr. Obutu submitted orally that the Applicant exhausted his right of appeal hence the court does not have authority to grant orders sought.  He prayed for dismissal of the application.
  4. I have considered rival arguments.  It is urged by the Applicant that the application was triggered by Article 50(2) (p) (q) of the Constitution which enacts that;

“(2) Every accused person has the right to a fair trial, which includes the right

(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”

  1. It is submitted that upon conviction the Applicant exercised the right of appeal to a higher court and even moved to a superior court which determined his fate.  This would be following Article 50(2) (q) of the Constitution.
  2. The Applicant herein was indicted in the year 2007.  Article 165(3) (b) alluded to provides thus;

(3) Subject to clause (5), the High Court shall have—

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

  1. Issues presented before this court do not touch on the question or denial of the bill of rights that may have been violated.  The Applicant who was charged was required to enjoy the rights as enshrined in the Constitution to the greatest extent consistent with the nature of the right.  He was arraigned, tried and convicted.  His rights as an accused person were not trampled on by the court.  He was sentenced to a sentence which has not been changed.
  2. He argues that case law has frowned upon minimum mandatory sentences.  This was the case as evidenced by authorities cited in the Joshua Gichuki Mwangi case (supra) the Court of Appeal did reach a decision that the mandatory minimum sentences did deprive judicial officers from exercising judicial discretion.
  3. However, the Supreme Court in Petition No. E018 of 2023 (2024) Republic v Mwangi the Supreme Court held that;

“63.Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.

64.The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular Section 8 that would have been relevant to the Respondent’s case.

65.We also note that the Court of Appeal concluded its decision in this present matter by reducing the Respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court's decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter.

66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.

68.Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”

  1. Whether or not strides made by the courts below the Supreme Court was not acknowledged by the Supreme Court, there is the question of the doctrine of stare decisis which requires a court to follow precedents established by a Superior Court.  This court would not operate efficiently if it reached a disparate legal interpretation that contradicts the decision of the apex court.  So far there have not been established compelling reasons calling for disregard of the decision of the Superior Court.
  2. The upshot of the above is that the application lacks merit.  Accordingly, it is dismissed.
  3. It is so ordered.



    Paul Njoroge Kamau VS The Republic Paul Njoroge Kamau VS The Republic