Whereas the applicant and his Advocate have not attended to prosecute this application, this court has carefully considered the application, the grounds on its face thereof, the supporting affidavit and the oral submissions of Mr. Masila, learned counsel for the state. The application principally seeks a reduction of the sentence imposed upon the applicant, in the court below for a sexual offence. It is urged that the same be replaced with a non-custodial sentence and provisions of section 333(2) of the Criminal Procedure Code be taken into account.
It is stated that the applicant was sentenced to twenty years imprisonment out of which he has served 9 years and that his appeal to the High Court was dismissed. The applicant further states that he was a first offender and that he was raised by single mother who solely cared for him until her demise where upon he was raised by his uncle under very difficult circumstances that he was the sole bread winner of his family, remorseful and repentant, has acquired practical skills while in prison and he shall not reoffend.
It is instinctive that firstly, this application being one for review coming after the applicant had appealed and his appeal dismissed, this court has no jurisdiction to sit on appeal against a court of concurrent jurisdiction. The applicant’s recourse lies in appealing the conviction/sentence to the court of Appeal or if intent on seeking a review, to seeking a review to a higher court meaning the court of Appeal, as provided in Article 50(2)(q) of the constitution which states:
“50(2) every accused person has the right to a fair trial, which includes the right - …
(q) If convicted to appeal to, or apply for review by, a higher court as prescribed by law”
The applicant having appealed the decision of the trial court and lost in the High court he cannot come to this court for review.
In any event it has now been settled that the courts have no jurisdiction to reduce the minimum sentences in the sexual offences Act. This is following the decisions of the Supreme Court in the case of Republic V Mwangi, Initiative for Strategic Litigation in Africa (ISLA) and 3 others (Amicus Curiae). SC Petion No E018 of 2023, [2024], KESC 34 (KLR) and the case of Republic V Manyeso(Petition E013 of 2024)(2025) kts c/6 (KLR)(11th April 2025) Judgment. This position has since been adopted by the Court of Appeal. In the case Bosire V Republic (Criminal Appeal E137 of 2020) [2026] KECA 179 (KLR) (30 January 2026) (Judgment) that court stated that-
“6….. The appellant’s appeal against sentence faces several huddles. First, he was sentenced top (sic) 20 years imprisonment which is the minimum sentence provided in law. We cannot lower or interfere with the sentence without going against section 8(3) of the Act. In addition the Supreme Court in Republic V Mwangi: Initiative for Strategic Litigation in Africa (ISLA) And 3 others (AMICUS CURIAE) [2024] KESC 34 (KLR) was categorized that the mandatory maximum sentences prescribed by Sexual Offences Act remain in law books unless and until the law is amended. Accordingly we have no power to interfere with the said sentence…”
Similarly, this court even it was seized with jurisdiction, it could not lower the sentence imposed by the lower court as it is a minimum mandatory sentence. Asking the court to release the accused/applicant after serving only 9 years Fanta mount to asking that the sentence be lowered. It would be an abuse of judicial discretion to do so.
In regard to the prayer under section 333(2) of the Criminal Procedure Code, nothing has been placed before this court by the counsel for the applicant to demonstrate that the provisions were overlooked at the time of sentencing or during the appeal in the High Court. In the circumstances this court has no reason as to warrant it to make such an order.
In the upshot, the entire application is found to be without merit and it is dismissed.
A copy of the same shall be submitted to the prison where the applicant is held, by the Deputy Registrar of this court.
Ruling dated, signed and delivered in court (virtually) on this 18th June 2026.
In the presence of :
Mr Masila – Prosecution Counsel
Mary – Court Assistant/ Interpreter
It is stated that the applicant was sentenced to twenty years imprisonment out of which he has served 9 years and that his appeal to the High Court was dismissed. The applicant further states that he was a first offender and that he was raised by single mother who solely cared for him until her demise where upon he was raised by his uncle under very difficult circumstances that he was the sole bread winner of his family, remorseful and repentant, has acquired practical skills while in prison and he shall not reoffend.
It is instinctive that firstly, this application being one for review coming after the applicant had appealed and his appeal dismissed, this court has no jurisdiction to sit on appeal against a court of concurrent jurisdiction. The applicant’s recourse lies in appealing the conviction/sentence to the court of Appeal or if intent on seeking a review, to seeking a review to a higher court meaning the court of Appeal, as provided in Article 50(2)(q) of the constitution which states:
“50(2) every accused person has the right to a fair trial, which includes the right - …
(q) If convicted to appeal to, or apply for review by, a higher court as prescribed by law”
The applicant having appealed the decision of the trial court and lost in the High court he cannot come to this court for review.
In any event it has now been settled that the courts have no jurisdiction to reduce the minimum sentences in the sexual offences Act. This is following the decisions of the Supreme Court in the case of Republic V Mwangi, Initiative for Strategic Litigation in Africa (ISLA) and 3 others (Amicus Curiae). SC Petion No E018 of 2023, [2024], KESC 34 (KLR) and the case of Republic V Manyeso(Petition E013 of 2024)(2025) kts c/6 (KLR)(11th April 2025) Judgment. This position has since been adopted by the Court of Appeal. In the case Bosire V Republic (Criminal Appeal E137 of 2020) [2026] KECA 179 (KLR) (30 January 2026) (Judgment) that court stated that-
“6….. The appellant’s appeal against sentence faces several huddles. First, he was sentenced top (sic) 20 years imprisonment which is the minimum sentence provided in law. We cannot lower or interfere with the sentence without going against section 8(3) of the Act. In addition the Supreme Court in Republic V Mwangi: Initiative for Strategic Litigation in Africa (ISLA) And 3 others (AMICUS CURIAE) [2024] KESC 34 (KLR) was categorized that the mandatory maximum sentences prescribed by Sexual Offences Act remain in law books unless and until the law is amended. Accordingly we have no power to interfere with the said sentence…”
Similarly, this court even it was seized with jurisdiction, it could not lower the sentence imposed by the lower court as it is a minimum mandatory sentence. Asking the court to release the accused/applicant after serving only 9 years Fanta mount to asking that the sentence be lowered. It would be an abuse of judicial discretion to do so.
In regard to the prayer under section 333(2) of the Criminal Procedure Code, nothing has been placed before this court by the counsel for the applicant to demonstrate that the provisions were overlooked at the time of sentencing or during the appeal in the High Court. In the circumstances this court has no reason as to warrant it to make such an order.
In the upshot, the entire application is found to be without merit and it is dismissed.
A copy of the same shall be submitted to the prison where the applicant is held, by the Deputy Registrar of this court.
Ruling dated, signed and delivered in court (virtually) on this 18th June 2026.
In the presence of :
Mr Masila – Prosecution Counsel
Mary – Court Assistant/ Interpreter