[1] Before court for determination is an undated application filed in the on 2 nd January 2024. It was initially filed in the High Court at Eldoret as Eldoret High Court Criminal Revision No. E001 of 2024 but was transferred to the High Court at Kapsabet on 26 th July 2024. It seeks the review of the sentence imposed on him pursuant Article 50(2)(p), 165(3)(a)(d) and 258 (1) of the Constitution of Kenya, 2010.
[2] The application was predicated on the Supporting Affidavit sworn by the applicant, David Ashona Nene , in which he averred that he was charged, tried, convicted and sentenced to serve 15 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He stated that he now seeks sentence review in accordance with Section 362, 364(1) and 365 of the Criminal Procedure Code for the reason, inter alia, that the sentencing court did not take into consideration the period he spent in remand while awaiting the hearing and determination of his case.
[3] The applicant also relied on Articles 27(1), (2) and (4), 22(1), 23(1), 25 and 50(1) and (2) of the Constitution contending that he is a first time offender seeking leniency of the court; and that he is remorseful, repentant, reformed and a rehabilitated person. He further deposed that he has learned a lesson from his incarceration and now prays that he be allowed to play a part as a role model in the society.
[4] The application was duly served and, on the 23 rd June 2026, counsel for the respondent indicated that they were not opposed to the application and left it to the court to make a determination.
[5] Sub Articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[6] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court ."
[7] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[8] Accordingly, the Court called for the record of the lower court, namely, Kapsabet Senior Principal Magistrate’s Criminal Case No. 2415 of 2016: Republic v David Ashona Anene for perusal to ascertain the correctness, legality and propriety of the sentence passed therein. The record confirms that the applicant was indeed charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. In the alternative, he was charged with indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The victim in the case was a girl aged 13 years.
[9] The applicant denied the charges and was taken through the trial process. He was ultimately found guilty and convicted of the substantive charge of defilement and was sentence to 15 years’ imprisonment on 14 th August 2018.
[10] The relevant provisions of the Sexual Offences Act, namely, Section 8(1) and (3) , state that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[11] Needless to say that Section 8(3) prescribes a minimum sentence of 20 years and therefore neither the trial court nor this Court has any discretion to mete a lesser sentence under that provision. It is notable that, in this instance, the applicant was erroneously sentenced to 15 years instead. However, since this is a revision application, that error cannot be corrected by way of enhancement in view of the general position on enhancement of sentences. An analogy is drawn from the case of Sammy Omboke & another v Republic [2019] KECA 561 (KLR) the Court of Appeal held:
“26. In the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellants by court that the sentence meted upon them could be enhanced; and there was no notice of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a cross-appeal and notice and or warning the judge had no jurisdiction to enhance the sentence.”
[12] More importantly, the Supreme Court settled the issue of mandatory and minimum sentences in sexual offences in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) as follows:
67.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.This is why, even in the Muruatetu case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
"Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. the Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two."
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[13] In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), the Supreme Court restated the position and held that:
64. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence.
…
67. Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165(3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication.
68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments.
[14] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise on account of the doctrine of stare decisis. In Republic v Ayako [2025] KESC 20 (KLR) the Supreme Court restated that:
[49] This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[15] In the result, I find no merit in the applicant’s undated application filed herein on 2 nd January 2024. The same is hereby dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30 TH DAY OF JULY 2026
[2] The application was predicated on the Supporting Affidavit sworn by the applicant, David Ashona Nene , in which he averred that he was charged, tried, convicted and sentenced to serve 15 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He stated that he now seeks sentence review in accordance with Section 362, 364(1) and 365 of the Criminal Procedure Code for the reason, inter alia, that the sentencing court did not take into consideration the period he spent in remand while awaiting the hearing and determination of his case.
[3] The applicant also relied on Articles 27(1), (2) and (4), 22(1), 23(1), 25 and 50(1) and (2) of the Constitution contending that he is a first time offender seeking leniency of the court; and that he is remorseful, repentant, reformed and a rehabilitated person. He further deposed that he has learned a lesson from his incarceration and now prays that he be allowed to play a part as a role model in the society.
[4] The application was duly served and, on the 23 rd June 2026, counsel for the respondent indicated that they were not opposed to the application and left it to the court to make a determination.
[5] Sub Articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[6] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court ."
[7] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[8] Accordingly, the Court called for the record of the lower court, namely, Kapsabet Senior Principal Magistrate’s Criminal Case No. 2415 of 2016: Republic v David Ashona Anene for perusal to ascertain the correctness, legality and propriety of the sentence passed therein. The record confirms that the applicant was indeed charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. In the alternative, he was charged with indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The victim in the case was a girl aged 13 years.
[9] The applicant denied the charges and was taken through the trial process. He was ultimately found guilty and convicted of the substantive charge of defilement and was sentence to 15 years’ imprisonment on 14 th August 2018.
[10] The relevant provisions of the Sexual Offences Act, namely, Section 8(1) and (3) , state that:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[11] Needless to say that Section 8(3) prescribes a minimum sentence of 20 years and therefore neither the trial court nor this Court has any discretion to mete a lesser sentence under that provision. It is notable that, in this instance, the applicant was erroneously sentenced to 15 years instead. However, since this is a revision application, that error cannot be corrected by way of enhancement in view of the general position on enhancement of sentences. An analogy is drawn from the case of Sammy Omboke & another v Republic [2019] KECA 561 (KLR) the Court of Appeal held:
“26. In the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellants by court that the sentence meted upon them could be enhanced; and there was no notice of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a cross-appeal and notice and or warning the judge had no jurisdiction to enhance the sentence.”
[12] More importantly, the Supreme Court settled the issue of mandatory and minimum sentences in sexual offences in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) as follows:
67.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.This is why, even in the Muruatetu case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
"Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. the Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two."
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[13] In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), the Supreme Court restated the position and held that:
64. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence.
…
67. Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165(3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication.
68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments.
[14] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise on account of the doctrine of stare decisis. In Republic v Ayako [2025] KESC 20 (KLR) the Supreme Court restated that:
[49] This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[15] In the result, I find no merit in the applicant’s undated application filed herein on 2 nd January 2024. The same is hereby dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30 TH DAY OF JULY 2026