Skip to content
JudgmentPhilip Njoroge Macharia VS The Republic5 min read

Philip Njoroge Macharia VS The Republic

High Court at Nyahururu High Court · · Lilian Mutende


  1. Philip Njoroge Macharia, the Applicant, approached this court through an undated chamber summons filed herein on 9th November, 2022 seeking review of the sentence imposed in Criminal Case No. 921/2011 by Nyahururu Principal Magistrate’s Court for the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act where he was sentenced to serve life imprisonment.
  2. The Applicant avers that his first appeal to the High Court was dismissed in its entirety in Criminal Appeal No. 151 of 2011 at Nyahururu and he did not appeal to the Court of Appeal.
  3. That the High Court at Machakos in Petition No. E017 of 2021 Philip Mweke Maingi & 5 Others v DPP declared that the court discretion in sentencing should not be fettered by mandatory minimum sentencing provisions.
  4. The application is opposed by the Respondent through learned prosecution counsel, Mr. Obutu who urges that the appeal having been dismissed by the High Court, returning to the court to seek review is irregular.  He called for dismissal of the application. 
  5. It has been argued that minimum mandatory sentences deter the courts from exercising the discretion bestowed upon them.  Due to prevalence of some serious offences, mandatory minimum sentences serve as deterrent sentences that achieve the objective of sentence deterring potential offenders from committing severe offences like sexual offences.
  6. Minimum mandatory sentences create consistency despite criticism due to changing perspectives on original justice policy.  This argument was acknowledged by High Court cases including the Philip Mweke case cited.
  7. Looking at decisions that emanated from the Court of Appeal, it can be summed up that mandatory minimum sentences did deprive judicial discretion.  One such authority is Joshua Gichuki Mwangi v Republic, 2015 where the Court of Appeal delivered itself thus;
  8. However, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) it was 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. The decision emanated from the apex court in the judicial hierarchy of the Country, which ensures the interpretation of Constitutional matters.  The Applicant urges that according to Article 165(3) (b) this court has jurisdiction to determine the question.  The alluded to provision of law provides that;

“(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. The High Court has the power to interrogate if the Bill of rights has been violated, though not demonstrated in the instant case, but the decision was from a Superior Court.  The doctrine of stare decisis, a fundamental principle in this Country emphasizes the importance of following precedents reached by superior courts to ensure consistency in the law.
  2. In the result, this court cannot reach a disparate legal interpretation that would contradict the decision of the apex court.  Therefore, the application fails and is accordingly dismissed.
  3. It is so ordered.  


    Philip Njoroge Macharia VS The Republic Philip Njoroge Macharia VS The Republic