A. INTRODUCTION
1. The Petitioner, Solomon Ngatia Wachira, is a prisoner at Naivasha Maximum Security Prison serving a sentence of thirty (30) years' imprisonment, having been convicted of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He appeared before the trial court in Sexual Offences Case, was convicted, and his first appeal to the High Court (H.C.CR.A No. 219 of 2015) was dismissed on 25th May 2018. His second appeal to the Court of Appeal at Nakuru (Criminal Appeal No. 46 of 2018) was dismissed on 26th January 2023.
2. Having exhausted the ordinary appellate hierarchy, the Petitioner, acting in person from prison, filed this Petition on 12th June 2025 invoking Articles 22(1), 23, 25(c), 27, 28, 48 and 50(1), (2)(p) and (q) of the Constitution, and challenging the constitutionality of the mandatory minimum sentencing regime under Section 8(3) of the Sexual Offences Act. He complains, in the main petition, of two things:
i. that he was denied a fair trial when the trial court declined to adjourn the matter to enable his sole defence witness attend court; and
ii. that the thirty-year sentence imposed on him, being above the twenty-year statutory minimum sentence, was harsh, excessive, discriminatory and unconstitutional for want of individualisation.
3. The Respondent, through the Office of the Director of Public Prosecutions, filed a Reply on 9th June 2026 opposing the Petition, principally on the ground that the mandatory minimum sentence is a lawful expression of legislative policy, that the sentencing court exercised its discretion judicially, and that the doctrine of stare decisis as recently settled by the Supreme Court in Republic v Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) — forecloses the relief sought. The Petitioner filed a Rebuttal on 20th June 2026 and Written Submissions, maintaining his position.
4. Having carefully read the Petition, the Supporting Affidavit, the Notice of Motion, the Respondent's Reply, the Petitioner's Rebuttal, and the Written Submissions filed by the Petitioner, together with the authorities cited, I now render my determination.
B. ISSUES FOR DETERMINATION
5. Three issues fall for determination:
i. Whether this Court, exercising original constitutional jurisdiction under Article 165(3)(b), has jurisdiction to re-open and determine the fair-trial complaint concerning the trial court's refusal to grant an adjournment, given that the same complaint was raised and pronounced upon by the High Court on first appeal and by the Court of Appeal on second appeal;
ii. Whether Section 8(3) of the Sexual Offences Act, and the thirty-year sentence imposed pursuant to it, offend Articles 25(c), 27, 28, 48 and 50(2)(q) of the Constitution; and
iii. What reliefs, if any, are available to the Petitioner.
C. ANALYSIS
i. Jurisdiction to revisit the adjournment/fair-trial complaint
6. It is trite, and this Court readily accepts, that Article 165(3)(b) of the Constitution donates to the High Court original jurisdiction to determine whether a right in the Bill of Rights has been denied, violated, infringed or threatened, and that Article 23 empowers the Court to fashion appropriate relief. It is equally trite, as the Petitioner correctly submits relying on Protus Buliba Shikuku v Attorney General [2012] KEHC 5517 (KLR) , that no limitation period is prescribed for the vindication of a fundamental right, and that a litigant does not lose the right to approach a constitutional court merely because time has passed since the alleged violation.
7. However, the existence of jurisdiction in the abstract does not answer the narrower and decisive question in this case; may a party who has already ventilated a specific complaint, the trial court's refusal of an adjournment, before the High Court on first appeal and before the Court of Appeal on second appeal, resurrect the identical complaint before another judge of the High Court, sitting this time in its constitutional rather than appellate jurisdiction, simply by re-labelling the grievance as one of "constitutional violation"?
8. The answer is no. Three well-settled doctrines converge to bar this course.
a. Finality and functus officio. Once a court has heard and determined a matter, it becomes functus officio in respect of it and cannot be asked, whether directly or through a differently framed application, to revisit the same question. The Supreme Court in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR held that "it is a general principle of law that a court, after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law." The adjournment complaint was raised at trial, carried to the High Court in H.C.CR.A No. 219 of 2015, and carried further to the Court of Appeal in Criminal Appeal No. 46 of 2018. By the Petitioner's own account in his Written Submissions, the Court of Appeal "chose to deal with the issue of the trial court having jurisdiction to either allow or disallow adjournment." That the Petitioner is dissatisfied with the manner in which the Court of Appeal disposed of the point does not reopen it; it closes it, subject only to a further appeal to the Supreme Court properly brought under Article 163(4).
b. Res judicata and the bar on relitigation through constitutional redress. In Nicholas Njeru v Attorney General & 8 Others [2013] eKLR the High Court affirmed that a litigant cannot evade the doctrine of res judicata by merely reformulating the same grievance as a constitutional claim, nor by adding parties or causes of action; litigation must come to an end. This Court associates itself with that reasoning. A near-identical fact pattern was addressed in Mwangi v Republic (Petition E006 of 2023) [2024] KEHC 10457 (KLR), where the High Court, faced with a petitioner who had already been heard on appeal with his sentence affirmed by the Court of Appeal, held that "there exists no jurisdiction under which he can have a second bite of the cherry."
c. The hierarchy of courts and stare decisis. Article 163(7) of the Constitution binds all courts other than the Supreme Court to its decisions, and it is a foundational feature of Kenya's judicial architecture — reflected in Article 164(3) — that the Court of Appeal sits above the High Court. A single judge of the High Court, exercising original constitutional jurisdiction, cannot sit in appellate or supervisory judgment over a decision of the Court of Appeal, a superior court in the hierarchy. To do so, as one court aptly put it, would be "tantamount to asking the court to sit on appeal or review" a decision it has no power to disturb. Any correction of an alleged error by the Court of Appeal must be sought at the Supreme Court, and only where the constitutional threshold under Article 163(4)(a) or (b) is met.
9. I am alive to the fact that Article 20(3) enjoins courts to interpret the Bill of Rights broadly and liberally. That injunction, however, governs how a right is construed once a court is properly seized of a live grievance; it does not manufacture jurisdiction where none exists, nor does it permit a subordinate forum to override a superior court's final determination. Republic v Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) — a decision both parties rely on — makes the point squarely in a different but related context: at paragraph 68, the Supreme Court held that a declaration of unconstitutionality cannot be made by a lower court unless the matter is properly filed and escalated in accordance with law. The corollary is equally true: a lower court cannot, by entertaining a freshly framed petition, effectively overturn what a higher court has already and finally decided on the same facts.
10. For these reasons, this Court declines jurisdiction to re-open, review or reverse the concurrent findings of the High Court on first appeal and the Court of Appeal on second appeal touching on the trial court's refusal to grant an adjournment. That specific complaint is spent. I say this with respect for the Petitioner's evident and genuine grievance — the record he has placed before this Court, including the trial court's own words that it did not know "what a personal matter is," is not comfortable reading, and had this issue come before this Court as a first appeal, it may well have attracted a different result. But this Court is not an appellate court over the Court of Appeal, and it would be a disservice to the rule of law — which depends on finality no less than on fairness — for me to purport to act as one.
Issue (ii): Constitutionality of Section 8(3) of the Sexual Offences Act and the sentence imposed
11. This ground stands on a different footing. Unlike the adjournment complaint, a free-standing constitutional challenge to the validity of Section 8(3) of the Sexual Offences Act was not, and as a matter of law could not have been, determined by the Court of Appeal sitting as a second appellate court on the facts of the Petitioner's criminal appeal; such a challenge required to be raised, as the Petitioner has now done, "in the manner contemplated" by paragraph 68 of Republic v Mwangi (ISLA) (supra) — that is, through a properly filed and argued constitutional petition. This Court therefore has jurisdiction to consider it. The difficulty for the Petitioner, however, lies not in jurisdiction but in the merits, which have since been conclusively settled against his position.
12. The starting point is Francis Karioko Muruatetu & Another v Republic [2017] eKLR, in which the Supreme Court declared the mandatory death sentence for murder under Section 204 of the Penal Code unconstitutional for foreclosing judicial discretion and individualised sentencing. Several benches of the Court of Appeal — including in Dismas Wafula Kilwake v Republic [2018] eKLR and in the decision under review in Gichuki Mwangi itself — extended the ratio decidendi of Muruatetu, by analogy, to mandatory minimum sentences under the Sexual Offences Act, reasoning that they offended Articles 25 and 28 in the same way.
13. That extension has since been authoritatively rejected. In Republic v Joshua Gichuki Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), delivered on 12th July 2024, the Supreme Court (Koome CJ & P, Ibrahim, Wanjala, Njoki and Lenaola, SCJJ) allowed the Director of Public Prosecutions' appeal and set aside the Court of Appeal's decision. The Supreme Court held, in terms directly dispositive of the present Petition, that:
a. Muruatetu did not invalidate mandatory or minimum sentences generally, whether under the Penal Code, the Sexual Offences Act, or any other statute; its ratio was confined to the mandatory death sentence for murder;
b. the Court of Appeal, in extending Muruatetu mutatis mutandis to the Sexual Offences Act, itself offended the doctrine of stare decisis; and
c. mandatory minimum sentences under the Sexual Offences Act are constitutional and do not violate the right to a fair trial, human dignity, equal protection, or the principle of individualised sentencing; a minimum sentence sets a floor, not a ceiling, and is a legitimate legislative check on judicial discretion reflecting the gravity of, and the need to eliminate lenient or stereotype-driven sentencing in, sexual offences.
14. That determination binds this Court absolutely, by force of Article 163(7) of the Constitution. It disposes of the Petitioner's contention that Section 8(3) is unconstitutional for denying individualised sentencing (Article 25(c) and 50(2)(q)), for offending equality (Article 27), and for demeaning dignity (Article 28). Each of those arguments was made — in substance, if not verbatim — before the Supreme Court in Gichuki Mwangi and was rejected. The submission in the Petitioner's Rebuttal that the Respondent "mischaracterised" Gichuki Mwangi and that it left the door open for case-by-case constitutional challenge is not borne out by the judgment: the Supreme Court's invitation, at paragraph 62, for "a proper case" to be filed was addressed to challenges to mandatory minimum sentences other than those already pronounced upon; having itself pronounced comprehensively on Section 8(3) of the Sexual Offences Act, there is no live constitutional question concerning that provision left for this Court to determine afresh. I respectfully decline the invitation, echoed in the Petitioner's submissions, to "read down" Section 8(3); that would be indistinguishable from declaring it inconsistent with the Constitution in the very manner the Supreme Court has foreclosed.
15. I turn to the narrower and more nuanced point that the Petitioner presses in his Rebuttal: that even accepting the twenty-year floor is lawful, the trial court's enhancement to thirty years — ten years above the minimum — was imposed without identifying any aggravating factor personal to him, resting instead on generalised concern about defilement by teachers nationally. Gichuki Mwangi itself confirms that a minimum sentence is "a floor, not a ceiling," implying that any sentence above the floor must still be justified on the ordinary, non-constitutional principles of sentencing — proportionality, the Judiciary Sentencing Policy Guidelines, and regard to aggravating and mitigating factors. That, however, is a complaint about the exercise of sentencing discretion, which is quintessentially a matter for correction on ordinary appeal, not a free-standing constitutional violation. It was, on the Petitioner's own pleadings, a ground available to and apparently canvassed before the Court of Appeal on second appeal, which upheld the sentence. For the same reasons set out under Issue (i) above — finality, functus officio and the hierarchy of courts — this Court cannot revisit that discretionary sentencing outcome under the guise of a constitutional petition. If any error of law occurred in that regard, the remedy lay in seeking certification for a further appeal to the Supreme Court under Article 163(4)(b), not in a fresh petition before a court of coordinate or lesser standing than the one that made the finding.
16. The Petitioner's remaining points — that Section 8(3) offenders are excluded from plea bargaining and non-custodial sentencing options, and his passing reference to his HIV status and years of good conduct in custody — are, with respect, matters more properly addressed to the Power of Mercy Advisory Committee under Article 133 of the Constitution, or to Parliament in the exercise of its legislative function, than to this Court sitting in constitutional review of a settled statutory provision. They do not, without more, found an independent constitutional violation distinct from the Section 8(3) challenge already disposed of by the Supreme Court.
Issue (iii): Reliefs
17. It follows from the foregoing that the Petition, though competently filed and ably argued for a self-represented litigant, cannot succeed. The complaint concerning denial of an adjournment has already been finally determined by the High Court and the Court of Appeal and is not open to re-litigation in this forum. The complaint concerning the constitutionality of Section 8(3) of the Sexual Offences Act, and of mandatory minimum sentencing under it, has been conclusively and authoritatively settled against the Petitioner's position by the Supreme Court in Republic v Joshua Gichuki Mwangi (supra), a decision binding on this Court.
18. I do wish to record, before concluding, that nothing in this ruling should be read as approval of the sentencing court's reasoning at first instance, nor as foreclosing entirely avenues that remain genuinely open to the Petitioner — namely, executive clemency under Article 133 of the Constitution having regard to his rehabilitation record, or, should a genuine point of law of general public importance distinct from Gichuki Mwangi be identified, an application for certification to the Supreme Court under Article 163(4)(b). What this Court cannot do is act as a second Court of Appeal, or as a court of first instance re-litigating a constitutional question the apex court has already answered.
19. For the reasons set out hereinabove, the Petition dated 12 th June 2025 is found to be without merit. It is dismissed with no order as to costs.
Dated, signed and delivered at Nakuru this 21 st day of september. 2026 .
J. K. SERGON
JUDGE
In the presence of :
C/A: Rutoh/Jamleck
Mr. Baya for Prosecution
Petitioner: Present in person (Kamiti Maximum)
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1. The Petitioner, Solomon Ngatia Wachira, is a prisoner at Naivasha Maximum Security Prison serving a sentence of thirty (30) years' imprisonment, having been convicted of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He appeared before the trial court in Sexual Offences Case, was convicted, and his first appeal to the High Court (H.C.CR.A No. 219 of 2015) was dismissed on 25th May 2018. His second appeal to the Court of Appeal at Nakuru (Criminal Appeal No. 46 of 2018) was dismissed on 26th January 2023.
2. Having exhausted the ordinary appellate hierarchy, the Petitioner, acting in person from prison, filed this Petition on 12th June 2025 invoking Articles 22(1), 23, 25(c), 27, 28, 48 and 50(1), (2)(p) and (q) of the Constitution, and challenging the constitutionality of the mandatory minimum sentencing regime under Section 8(3) of the Sexual Offences Act. He complains, in the main petition, of two things:
i. that he was denied a fair trial when the trial court declined to adjourn the matter to enable his sole defence witness attend court; and
ii. that the thirty-year sentence imposed on him, being above the twenty-year statutory minimum sentence, was harsh, excessive, discriminatory and unconstitutional for want of individualisation.
3. The Respondent, through the Office of the Director of Public Prosecutions, filed a Reply on 9th June 2026 opposing the Petition, principally on the ground that the mandatory minimum sentence is a lawful expression of legislative policy, that the sentencing court exercised its discretion judicially, and that the doctrine of stare decisis as recently settled by the Supreme Court in Republic v Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) — forecloses the relief sought. The Petitioner filed a Rebuttal on 20th June 2026 and Written Submissions, maintaining his position.
4. Having carefully read the Petition, the Supporting Affidavit, the Notice of Motion, the Respondent's Reply, the Petitioner's Rebuttal, and the Written Submissions filed by the Petitioner, together with the authorities cited, I now render my determination.
B. ISSUES FOR DETERMINATION
5. Three issues fall for determination:
i. Whether this Court, exercising original constitutional jurisdiction under Article 165(3)(b), has jurisdiction to re-open and determine the fair-trial complaint concerning the trial court's refusal to grant an adjournment, given that the same complaint was raised and pronounced upon by the High Court on first appeal and by the Court of Appeal on second appeal;
ii. Whether Section 8(3) of the Sexual Offences Act, and the thirty-year sentence imposed pursuant to it, offend Articles 25(c), 27, 28, 48 and 50(2)(q) of the Constitution; and
iii. What reliefs, if any, are available to the Petitioner.
C. ANALYSIS
i. Jurisdiction to revisit the adjournment/fair-trial complaint
6. It is trite, and this Court readily accepts, that Article 165(3)(b) of the Constitution donates to the High Court original jurisdiction to determine whether a right in the Bill of Rights has been denied, violated, infringed or threatened, and that Article 23 empowers the Court to fashion appropriate relief. It is equally trite, as the Petitioner correctly submits relying on Protus Buliba Shikuku v Attorney General [2012] KEHC 5517 (KLR) , that no limitation period is prescribed for the vindication of a fundamental right, and that a litigant does not lose the right to approach a constitutional court merely because time has passed since the alleged violation.
7. However, the existence of jurisdiction in the abstract does not answer the narrower and decisive question in this case; may a party who has already ventilated a specific complaint, the trial court's refusal of an adjournment, before the High Court on first appeal and before the Court of Appeal on second appeal, resurrect the identical complaint before another judge of the High Court, sitting this time in its constitutional rather than appellate jurisdiction, simply by re-labelling the grievance as one of "constitutional violation"?
8. The answer is no. Three well-settled doctrines converge to bar this course.
a. Finality and functus officio. Once a court has heard and determined a matter, it becomes functus officio in respect of it and cannot be asked, whether directly or through a differently framed application, to revisit the same question. The Supreme Court in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR held that "it is a general principle of law that a court, after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law." The adjournment complaint was raised at trial, carried to the High Court in H.C.CR.A No. 219 of 2015, and carried further to the Court of Appeal in Criminal Appeal No. 46 of 2018. By the Petitioner's own account in his Written Submissions, the Court of Appeal "chose to deal with the issue of the trial court having jurisdiction to either allow or disallow adjournment." That the Petitioner is dissatisfied with the manner in which the Court of Appeal disposed of the point does not reopen it; it closes it, subject only to a further appeal to the Supreme Court properly brought under Article 163(4).
b. Res judicata and the bar on relitigation through constitutional redress. In Nicholas Njeru v Attorney General & 8 Others [2013] eKLR the High Court affirmed that a litigant cannot evade the doctrine of res judicata by merely reformulating the same grievance as a constitutional claim, nor by adding parties or causes of action; litigation must come to an end. This Court associates itself with that reasoning. A near-identical fact pattern was addressed in Mwangi v Republic (Petition E006 of 2023) [2024] KEHC 10457 (KLR), where the High Court, faced with a petitioner who had already been heard on appeal with his sentence affirmed by the Court of Appeal, held that "there exists no jurisdiction under which he can have a second bite of the cherry."
c. The hierarchy of courts and stare decisis. Article 163(7) of the Constitution binds all courts other than the Supreme Court to its decisions, and it is a foundational feature of Kenya's judicial architecture — reflected in Article 164(3) — that the Court of Appeal sits above the High Court. A single judge of the High Court, exercising original constitutional jurisdiction, cannot sit in appellate or supervisory judgment over a decision of the Court of Appeal, a superior court in the hierarchy. To do so, as one court aptly put it, would be "tantamount to asking the court to sit on appeal or review" a decision it has no power to disturb. Any correction of an alleged error by the Court of Appeal must be sought at the Supreme Court, and only where the constitutional threshold under Article 163(4)(a) or (b) is met.
9. I am alive to the fact that Article 20(3) enjoins courts to interpret the Bill of Rights broadly and liberally. That injunction, however, governs how a right is construed once a court is properly seized of a live grievance; it does not manufacture jurisdiction where none exists, nor does it permit a subordinate forum to override a superior court's final determination. Republic v Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) — a decision both parties rely on — makes the point squarely in a different but related context: at paragraph 68, the Supreme Court held that a declaration of unconstitutionality cannot be made by a lower court unless the matter is properly filed and escalated in accordance with law. The corollary is equally true: a lower court cannot, by entertaining a freshly framed petition, effectively overturn what a higher court has already and finally decided on the same facts.
10. For these reasons, this Court declines jurisdiction to re-open, review or reverse the concurrent findings of the High Court on first appeal and the Court of Appeal on second appeal touching on the trial court's refusal to grant an adjournment. That specific complaint is spent. I say this with respect for the Petitioner's evident and genuine grievance — the record he has placed before this Court, including the trial court's own words that it did not know "what a personal matter is," is not comfortable reading, and had this issue come before this Court as a first appeal, it may well have attracted a different result. But this Court is not an appellate court over the Court of Appeal, and it would be a disservice to the rule of law — which depends on finality no less than on fairness — for me to purport to act as one.
Issue (ii): Constitutionality of Section 8(3) of the Sexual Offences Act and the sentence imposed
11. This ground stands on a different footing. Unlike the adjournment complaint, a free-standing constitutional challenge to the validity of Section 8(3) of the Sexual Offences Act was not, and as a matter of law could not have been, determined by the Court of Appeal sitting as a second appellate court on the facts of the Petitioner's criminal appeal; such a challenge required to be raised, as the Petitioner has now done, "in the manner contemplated" by paragraph 68 of Republic v Mwangi (ISLA) (supra) — that is, through a properly filed and argued constitutional petition. This Court therefore has jurisdiction to consider it. The difficulty for the Petitioner, however, lies not in jurisdiction but in the merits, which have since been conclusively settled against his position.
12. The starting point is Francis Karioko Muruatetu & Another v Republic [2017] eKLR, in which the Supreme Court declared the mandatory death sentence for murder under Section 204 of the Penal Code unconstitutional for foreclosing judicial discretion and individualised sentencing. Several benches of the Court of Appeal — including in Dismas Wafula Kilwake v Republic [2018] eKLR and in the decision under review in Gichuki Mwangi itself — extended the ratio decidendi of Muruatetu, by analogy, to mandatory minimum sentences under the Sexual Offences Act, reasoning that they offended Articles 25 and 28 in the same way.
13. That extension has since been authoritatively rejected. In Republic v Joshua Gichuki Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), delivered on 12th July 2024, the Supreme Court (Koome CJ & P, Ibrahim, Wanjala, Njoki and Lenaola, SCJJ) allowed the Director of Public Prosecutions' appeal and set aside the Court of Appeal's decision. The Supreme Court held, in terms directly dispositive of the present Petition, that:
a. Muruatetu did not invalidate mandatory or minimum sentences generally, whether under the Penal Code, the Sexual Offences Act, or any other statute; its ratio was confined to the mandatory death sentence for murder;
b. the Court of Appeal, in extending Muruatetu mutatis mutandis to the Sexual Offences Act, itself offended the doctrine of stare decisis; and
c. mandatory minimum sentences under the Sexual Offences Act are constitutional and do not violate the right to a fair trial, human dignity, equal protection, or the principle of individualised sentencing; a minimum sentence sets a floor, not a ceiling, and is a legitimate legislative check on judicial discretion reflecting the gravity of, and the need to eliminate lenient or stereotype-driven sentencing in, sexual offences.
14. That determination binds this Court absolutely, by force of Article 163(7) of the Constitution. It disposes of the Petitioner's contention that Section 8(3) is unconstitutional for denying individualised sentencing (Article 25(c) and 50(2)(q)), for offending equality (Article 27), and for demeaning dignity (Article 28). Each of those arguments was made — in substance, if not verbatim — before the Supreme Court in Gichuki Mwangi and was rejected. The submission in the Petitioner's Rebuttal that the Respondent "mischaracterised" Gichuki Mwangi and that it left the door open for case-by-case constitutional challenge is not borne out by the judgment: the Supreme Court's invitation, at paragraph 62, for "a proper case" to be filed was addressed to challenges to mandatory minimum sentences other than those already pronounced upon; having itself pronounced comprehensively on Section 8(3) of the Sexual Offences Act, there is no live constitutional question concerning that provision left for this Court to determine afresh. I respectfully decline the invitation, echoed in the Petitioner's submissions, to "read down" Section 8(3); that would be indistinguishable from declaring it inconsistent with the Constitution in the very manner the Supreme Court has foreclosed.
15. I turn to the narrower and more nuanced point that the Petitioner presses in his Rebuttal: that even accepting the twenty-year floor is lawful, the trial court's enhancement to thirty years — ten years above the minimum — was imposed without identifying any aggravating factor personal to him, resting instead on generalised concern about defilement by teachers nationally. Gichuki Mwangi itself confirms that a minimum sentence is "a floor, not a ceiling," implying that any sentence above the floor must still be justified on the ordinary, non-constitutional principles of sentencing — proportionality, the Judiciary Sentencing Policy Guidelines, and regard to aggravating and mitigating factors. That, however, is a complaint about the exercise of sentencing discretion, which is quintessentially a matter for correction on ordinary appeal, not a free-standing constitutional violation. It was, on the Petitioner's own pleadings, a ground available to and apparently canvassed before the Court of Appeal on second appeal, which upheld the sentence. For the same reasons set out under Issue (i) above — finality, functus officio and the hierarchy of courts — this Court cannot revisit that discretionary sentencing outcome under the guise of a constitutional petition. If any error of law occurred in that regard, the remedy lay in seeking certification for a further appeal to the Supreme Court under Article 163(4)(b), not in a fresh petition before a court of coordinate or lesser standing than the one that made the finding.
16. The Petitioner's remaining points — that Section 8(3) offenders are excluded from plea bargaining and non-custodial sentencing options, and his passing reference to his HIV status and years of good conduct in custody — are, with respect, matters more properly addressed to the Power of Mercy Advisory Committee under Article 133 of the Constitution, or to Parliament in the exercise of its legislative function, than to this Court sitting in constitutional review of a settled statutory provision. They do not, without more, found an independent constitutional violation distinct from the Section 8(3) challenge already disposed of by the Supreme Court.
Issue (iii): Reliefs
17. It follows from the foregoing that the Petition, though competently filed and ably argued for a self-represented litigant, cannot succeed. The complaint concerning denial of an adjournment has already been finally determined by the High Court and the Court of Appeal and is not open to re-litigation in this forum. The complaint concerning the constitutionality of Section 8(3) of the Sexual Offences Act, and of mandatory minimum sentencing under it, has been conclusively and authoritatively settled against the Petitioner's position by the Supreme Court in Republic v Joshua Gichuki Mwangi (supra), a decision binding on this Court.
18. I do wish to record, before concluding, that nothing in this ruling should be read as approval of the sentencing court's reasoning at first instance, nor as foreclosing entirely avenues that remain genuinely open to the Petitioner — namely, executive clemency under Article 133 of the Constitution having regard to his rehabilitation record, or, should a genuine point of law of general public importance distinct from Gichuki Mwangi be identified, an application for certification to the Supreme Court under Article 163(4)(b). What this Court cannot do is act as a second Court of Appeal, or as a court of first instance re-litigating a constitutional question the apex court has already answered.
19. For the reasons set out hereinabove, the Petition dated 12 th June 2025 is found to be without merit. It is dismissed with no order as to costs.
Dated, signed and delivered at Nakuru this 21 st day of september. 2026 .
J. K. SERGON
JUDGE
In the presence of :
C/A: Rutoh/Jamleck
Mr. Baya for Prosecution
Petitioner: Present in person (Kamiti Maximum)
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