REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
HIGH COURT CRIMINAL REVISION NO. E008 OF 2023
(Coram: Andayi W. F, J.)
ALEXANDER KIMWELI......................................................................................APPLICANT
VERSUS
REPUBLIC..............................................................................................................RESPONDENT
(Being an application for review of sentence of life imprisonment from the Judgment and order of the High Court in Mombasa High Court Criminal Appeal No. 132 of 2017)
RULING
1. The applicant Alexander Kimwele Kinyili was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya and sentenced to serve 30 years’ imprisonment. The particulars were that on 23 rd September 2015 at Kilulu village Mivumoni location, Msambweni district in Kwale County within Coast region unlawfully and intentionally committed an act which caused his penis to penetrate into the vagina of PNW a girl aged 7 years.
2. Section 8(1) and (2) of the Sexual Offences Act under which the applicant was convicted and sentenced provides that: -
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3. He appealed in Mombasa High Court Criminal Appeal No. 132 of 2017 and his conviction was upheld but the sentence enhanced to life imprisonment which he is currently serving at Shimo La Tewa prison. He has come back to this court to try his luck for a review of that sentence.
4. His application by way of notice of motion is undated but it was filed in court on 6 th December 2023. It is indicated to be filed under sections 354 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. It is indicated to supported by what was supposed to be an affidavit but the document does not bear the stamp of a Commissioner for Oaths as is required under the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and is similarly not dated. I will consider the document to be setting out the grounds in support of the application. The grounds in support of the application are that prior to his arrest he had a family consisting of a wife and six children, including a widowed mother all of whom depended on him for upkeep. They are now undergoing hardship as he serves his sentence. He also states that this court is clothed with jurisdiction to provide the necessary intervention under article 23 of the Constitution.
5. The application was disposed of on written submissions filed by the applicant alongside the application which I have duly considered. Learned counsel for the respondent did not file submissions.
6. I have considered the application by the applicant and his submissions. The issue for determination is whether the application has merit, that is whether this court can review its own sentence.
7. The gist of the applicant’s submissions is that he relies on the case of Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) where the High Court, Odunga, J. (as he then was) held that:
“1) To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution. However, the Court are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences.
2) Taking cue from the decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.”
8. The applicant therefore urges the court to review his sentence from life imprisonment and then perhaps in passing a determinate sentence to considered to consider the time that he had spent in custody pending trial.
9. It is true that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR , the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the one cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) , the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
10. The Supreme Court has subsequently in its decision in the case of a sexual offence in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12 th July 2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
11. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the application herein is overtaken by time.
12. Having found so, the issue must rest that the application fails.
13. However, for clarity sake since this type of applications keep being filed at the High Court for review of sentence, I think it proper to state that this court having considered the appellant’s appeal and made a decision thereon to enhance the sentence, I find no other basis upon which it can review its own sentence downwards as prayed for by the applicant. The jurisdiction of a court to consider and determine a matter must be expressly provided for either under the constitution or statute.
14. The right to petition for review is provided for under article 50(2)(q) of the Constitution which provides that:
“50(2)(q) Every accused person has the right to a fair trial, which
includes the right if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
15. In the case of Republic v Danson Mgunya [2016] KECA 59 (KLR) the Court of Appeal, while considering the provision said thus:
“Under that provision, one of the attributes of a fair trial under the Constitution is the right of an accused person who has been convicted of a criminal offence to appeal or apply for review of the conviction to a higher court as prescribed by law . The right of appeal in the context of the above provision enables an aggrieved convict to request a higher court to have a second look at his trial and satisfy itself that the conviction is indeed well founded. By Article 50 (2) (q), the Constitution allows the law to prescribe how the right of appeal or review will be exercised. It is on that basis that the law provides, for example, the circumstances under which an aggrieved person may lodge and appeal or apply for review; to which court an appeal or application for review lies; whether the appeal is on both facts and law or on law alone; the period within which an appeal or application for review is to be made; among others.”
16. It is apparent that article 50(2)(q) provides for review by a higher court. The applicant herein has made his application to the same court and not to a higher court. It follows that this court has no jurisdiction to grant the orders sought.
17. On the issue of the pre-trial period being considered in passing the sentence, the record of the trial court shows that the applicant took plea on 13 th October 2015 and he was convicted and sentenced on 21 st July 2017 a period of about two years and nine months, when he was undergoing trial. He submits that this period of pre-trial custody was not factored in the sentence that was imposed by the trial court. I have looked at the trial court record and it is true that the court did not express itself on that issue. However, there is no useful purpose to be served by taking into account that period as provided for under the proviso to section 333(2) CPC because of the life sentence imposed upon the applicant by this court. The applicant has to serve sentence of life imprisonment as meted out by this court. In the case of Republic v Ayako [2025] KESC 20 (KLR) the Supreme Court held with regard to what constitutes life imprisonment that:
“Although a life sentence should not necessarily encompass a prisoner's natural life, the duty to define the specific parameters of "life imprisonment" rested solely with Parliament under article 51(3) of the Constitution. It was regrettable that despite the Supreme Court’s 2017 recommendation for the Attorney General and Parliament to develop legislation on the matter, no such action had been taken.”
18. This means that the term of life imprisonment remains the prisoner’s natural life until the time Parliament specifies the parameter, if at all. Accordingly, there is no room for the application of the proviso to section 333(2) CPC.
19. Accordingly, for the reasons set out above, I find that the application herein fails and is dismissed in its entirety.
20. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 30 th day of July 2026.
The appellant in person in Shimo La Tewa maximum prison.
Ms Vallerie for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
kwale HC. Cr. rev. Appn No. E008/20235/review of sentence
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
HIGH COURT CRIMINAL REVISION NO. E008 OF 2023
(Coram: Andayi W. F, J.)
ALEXANDER KIMWELI......................................................................................APPLICANT
VERSUS
REPUBLIC..............................................................................................................RESPONDENT
(Being an application for review of sentence of life imprisonment from the Judgment and order of the High Court in Mombasa High Court Criminal Appeal No. 132 of 2017)
RULING
1. The applicant Alexander Kimwele Kinyili was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya and sentenced to serve 30 years’ imprisonment. The particulars were that on 23 rd September 2015 at Kilulu village Mivumoni location, Msambweni district in Kwale County within Coast region unlawfully and intentionally committed an act which caused his penis to penetrate into the vagina of PNW a girl aged 7 years.
2. Section 8(1) and (2) of the Sexual Offences Act under which the applicant was convicted and sentenced provides that: -
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3. He appealed in Mombasa High Court Criminal Appeal No. 132 of 2017 and his conviction was upheld but the sentence enhanced to life imprisonment which he is currently serving at Shimo La Tewa prison. He has come back to this court to try his luck for a review of that sentence.
4. His application by way of notice of motion is undated but it was filed in court on 6 th December 2023. It is indicated to be filed under sections 354 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. It is indicated to supported by what was supposed to be an affidavit but the document does not bear the stamp of a Commissioner for Oaths as is required under the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and is similarly not dated. I will consider the document to be setting out the grounds in support of the application. The grounds in support of the application are that prior to his arrest he had a family consisting of a wife and six children, including a widowed mother all of whom depended on him for upkeep. They are now undergoing hardship as he serves his sentence. He also states that this court is clothed with jurisdiction to provide the necessary intervention under article 23 of the Constitution.
5. The application was disposed of on written submissions filed by the applicant alongside the application which I have duly considered. Learned counsel for the respondent did not file submissions.
6. I have considered the application by the applicant and his submissions. The issue for determination is whether the application has merit, that is whether this court can review its own sentence.
7. The gist of the applicant’s submissions is that he relies on the case of Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) where the High Court, Odunga, J. (as he then was) held that:
“1) To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution. However, the Court are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences.
2) Taking cue from the decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.”
8. The applicant therefore urges the court to review his sentence from life imprisonment and then perhaps in passing a determinate sentence to considered to consider the time that he had spent in custody pending trial.
9. It is true that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR , the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the one cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) , the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
10. The Supreme Court has subsequently in its decision in the case of a sexual offence in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12 th July 2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
11. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the application herein is overtaken by time.
12. Having found so, the issue must rest that the application fails.
13. However, for clarity sake since this type of applications keep being filed at the High Court for review of sentence, I think it proper to state that this court having considered the appellant’s appeal and made a decision thereon to enhance the sentence, I find no other basis upon which it can review its own sentence downwards as prayed for by the applicant. The jurisdiction of a court to consider and determine a matter must be expressly provided for either under the constitution or statute.
14. The right to petition for review is provided for under article 50(2)(q) of the Constitution which provides that:
“50(2)(q) Every accused person has the right to a fair trial, which
includes the right if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
15. In the case of Republic v Danson Mgunya [2016] KECA 59 (KLR) the Court of Appeal, while considering the provision said thus:
“Under that provision, one of the attributes of a fair trial under the Constitution is the right of an accused person who has been convicted of a criminal offence to appeal or apply for review of the conviction to a higher court as prescribed by law . The right of appeal in the context of the above provision enables an aggrieved convict to request a higher court to have a second look at his trial and satisfy itself that the conviction is indeed well founded. By Article 50 (2) (q), the Constitution allows the law to prescribe how the right of appeal or review will be exercised. It is on that basis that the law provides, for example, the circumstances under which an aggrieved person may lodge and appeal or apply for review; to which court an appeal or application for review lies; whether the appeal is on both facts and law or on law alone; the period within which an appeal or application for review is to be made; among others.”
16. It is apparent that article 50(2)(q) provides for review by a higher court. The applicant herein has made his application to the same court and not to a higher court. It follows that this court has no jurisdiction to grant the orders sought.
17. On the issue of the pre-trial period being considered in passing the sentence, the record of the trial court shows that the applicant took plea on 13 th October 2015 and he was convicted and sentenced on 21 st July 2017 a period of about two years and nine months, when he was undergoing trial. He submits that this period of pre-trial custody was not factored in the sentence that was imposed by the trial court. I have looked at the trial court record and it is true that the court did not express itself on that issue. However, there is no useful purpose to be served by taking into account that period as provided for under the proviso to section 333(2) CPC because of the life sentence imposed upon the applicant by this court. The applicant has to serve sentence of life imprisonment as meted out by this court. In the case of Republic v Ayako [2025] KESC 20 (KLR) the Supreme Court held with regard to what constitutes life imprisonment that:
“Although a life sentence should not necessarily encompass a prisoner's natural life, the duty to define the specific parameters of "life imprisonment" rested solely with Parliament under article 51(3) of the Constitution. It was regrettable that despite the Supreme Court’s 2017 recommendation for the Attorney General and Parliament to develop legislation on the matter, no such action had been taken.”
18. This means that the term of life imprisonment remains the prisoner’s natural life until the time Parliament specifies the parameter, if at all. Accordingly, there is no room for the application of the proviso to section 333(2) CPC.
19. Accordingly, for the reasons set out above, I find that the application herein fails and is dismissed in its entirety.
20. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 30 th day of July 2026.
The appellant in person in Shimo La Tewa maximum prison.
Ms Vallerie for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
kwale HC. Cr. rev. Appn No. E008/20235/review of sentence