Introduction
1. The Applicant has filed an undated Application seeking a review of sentence in Criminal Case No. S.O. 12 of 2018 at Kericho, in which he was convicted 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 and sentenced to 15 years' imprisonment. The Application is grounded on the following: that the Applicant has, by the date of filing, served approximately two-thirds of his sentence, with a remaining term of less than three years; that this Court has jurisdiction to hear the Application under Article 165(3)(b) of the Constitution; and that the Applicant prays for a non-custodial sentence, or that the period already served be treated as sufficient, having regard to rehabilitative programmes he has undertaken while in custody, together with any other orders the Court considers fit.
2. In his supporting affidavit, the Applicant states that he seeks a second chance, that he is remorseful and regrets the offence, and prays that the Court, in its mercy, grant him that second chance.
3. The State opposed the Application on the ground that the sentence imposed was lawful, being a mandatory minimum sentence under the Sexual Offences Act, and that the Applicant cannot, given the nature of sentences for sexual offences, benefit from a non-custodial sentence.
Analysis and Determination
4. The Applicant was 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, the particulars being that on or about 25th January 2018, at Chepseon Town within Kericho County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.C., a child aged 14 years. After full trial, he was found guilty of the offence and sentenced to serve 15 years' imprisonment, that being the mandatory minimum sentence prescribed under Section 8(3) for defilement of a child between the ages of 12 and 15 years.
5. Two issues arise for determination: first, whether this Court has jurisdiction to convert the Applicant's lawfully imposed mandatory sentence into a non-custodial sentence, or to treat the period already served as sufficient, on the grounds advanced — namely, time served, remorse, and participation in rehabilitative programmes; and second, if this Court has no such jurisdiction, what avenues, if any, remain open to the Applicant.
6. On the first issue, the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) held that the judicial substitution of a mandatory or indeterminate sentence prescribed by Parliament with an alternative, court-fashioned sentence is a usurpation of legislative authority and offends the doctrine of separation of powers, there being no legislative framework in Kenya empowering courts to vary such sentences once lawfully imposed. That case concerned a sentence of life imprisonment under Section 8(2) of the Sexual Offences Act, but its reasoning applies with equal force to the mandatory minimum term of 20 years prescribed under Section 8(3): both are sentences fixed by Parliament, not by judicial discretion, and a court has no more power to reduce one than to abolish the other. I respectfully adopt that reasoning.
7. The State's submission that a mandatory minimum sentence forecloses any relief of this kind is, with respect, only partly correct: it correctly forecloses relief from this Court, but does not mean no lawful avenue exists at all for a prisoner in the Applicant's position. Two such avenues exist, neither of which lies within the jurisdiction of this Court to grant on a review application of this kind.
8. The first is remission of sentence for good conduct, an administrative function vested in the Commissioner-General of Prisons under Section 46 of the Prisons Act (Cap 90), exercised according to the Kenya Prisons Service's own rules and record of a prisoner's conduct while in custody. If the Applicant has, as he asserts, already earned remission bringing him close to two-thirds of his term served, that is a matter of record with the Prisons Service and operates, where applicable, to advance his date of release; it does not confer on this Court a power to convert his outstanding term into a non-custodial sentence, nor is an application to this Court the correct means of securing it, remission being administered by the Prisons Service itself and not ordered by a court.
9. The second is the prerogative of mercy under Article 133 of the Constitution and the Power of Mercy Act, 2011, which allows the President, acting on the recommendation of the Power of Mercy Advisory Committee, to grant a free or conditional pardon, a remission of part or the whole of a sentence, or a substitution of a less severe form of punishment, having regard to matters including the conduct of the offender while serving the sentence and any rehabilitation undertaken. This is precisely the kind of relief the Applicant seeks — a second chance grounded in remorse and demonstrated rehabilitation — and it is a power the Constitution vests exclusively in the Executive, not the Judiciary. This Court has no jurisdiction to pre-empt or substitute for that process by ordering, in effect, a discretionary reduction of a mandatory sentence that Parliament has fixed and that Manyeso confirms this Court has no power to vary.
10. Article 165(3)(b) of the Constitution, relied upon by the Applicant, vests this Court with jurisdiction to determine the denial, violation, infringement, or threat to a right or fundamental freedom in the Bill of Rights. The Applicant has not identified any right that continued service of a lawfully imposed sentence violates; a lawful sentence, correctly imposed after a fair trial in which the requirements of mitigation were satisfied, does not become a violation of any right merely because the prisoner has since reformed or served a substantial portion of it. Article 165(3)(b) accordingly confers no free-standing jurisdiction on this Court to grant the relief sought.
Disposition
11. For the foregoing reasons, I find and hold as follows:
(a). This Court has no jurisdiction to convert the Applicant's lawfully imposed mandatory minimum sentence of 15 years under Section 8(3) of the Sexual Offences Act into a non-custodial sentence, or to treat the period served as sufficient in substitution for it, whether on the grounds of time served, remorse, or rehabilitation;
(b). The sentence imposed remains the lawful and only sentence prescribed for the offence, and this Court declines to vary it, in accordance with Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR);
(c). The Application is dismissed;
(d). For the avoidance of doubt, this dismissal is without prejudice to the Applicant's right to pursue: (i) remission of sentence for good conduct through the Kenya Prisons Service, under Section 46 of the Prisons Act; and (ii) a petition for exercise of the prerogative of mercy under Article 133 of the Constitution and the Power of Mercy Act, 2011, neither of which lies within the jurisdiction of this Court to grant;
(e). No order as to costs.
It is so ordered.
Delivered at Kericho on 16th July 2026
In the presence of
Ms. Loice Osoro for the State
Vincent Kiprono Langat – Applicant
Court Assistant – Irene
1. The Applicant has filed an undated Application seeking a review of sentence in Criminal Case No. S.O. 12 of 2018 at Kericho, in which he was convicted 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 and sentenced to 15 years' imprisonment. The Application is grounded on the following: that the Applicant has, by the date of filing, served approximately two-thirds of his sentence, with a remaining term of less than three years; that this Court has jurisdiction to hear the Application under Article 165(3)(b) of the Constitution; and that the Applicant prays for a non-custodial sentence, or that the period already served be treated as sufficient, having regard to rehabilitative programmes he has undertaken while in custody, together with any other orders the Court considers fit.
2. In his supporting affidavit, the Applicant states that he seeks a second chance, that he is remorseful and regrets the offence, and prays that the Court, in its mercy, grant him that second chance.
3. The State opposed the Application on the ground that the sentence imposed was lawful, being a mandatory minimum sentence under the Sexual Offences Act, and that the Applicant cannot, given the nature of sentences for sexual offences, benefit from a non-custodial sentence.
Analysis and Determination
4. The Applicant was 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, the particulars being that on or about 25th January 2018, at Chepseon Town within Kericho County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.C., a child aged 14 years. After full trial, he was found guilty of the offence and sentenced to serve 15 years' imprisonment, that being the mandatory minimum sentence prescribed under Section 8(3) for defilement of a child between the ages of 12 and 15 years.
5. Two issues arise for determination: first, whether this Court has jurisdiction to convert the Applicant's lawfully imposed mandatory sentence into a non-custodial sentence, or to treat the period already served as sufficient, on the grounds advanced — namely, time served, remorse, and participation in rehabilitative programmes; and second, if this Court has no such jurisdiction, what avenues, if any, remain open to the Applicant.
6. On the first issue, the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) held that the judicial substitution of a mandatory or indeterminate sentence prescribed by Parliament with an alternative, court-fashioned sentence is a usurpation of legislative authority and offends the doctrine of separation of powers, there being no legislative framework in Kenya empowering courts to vary such sentences once lawfully imposed. That case concerned a sentence of life imprisonment under Section 8(2) of the Sexual Offences Act, but its reasoning applies with equal force to the mandatory minimum term of 20 years prescribed under Section 8(3): both are sentences fixed by Parliament, not by judicial discretion, and a court has no more power to reduce one than to abolish the other. I respectfully adopt that reasoning.
7. The State's submission that a mandatory minimum sentence forecloses any relief of this kind is, with respect, only partly correct: it correctly forecloses relief from this Court, but does not mean no lawful avenue exists at all for a prisoner in the Applicant's position. Two such avenues exist, neither of which lies within the jurisdiction of this Court to grant on a review application of this kind.
8. The first is remission of sentence for good conduct, an administrative function vested in the Commissioner-General of Prisons under Section 46 of the Prisons Act (Cap 90), exercised according to the Kenya Prisons Service's own rules and record of a prisoner's conduct while in custody. If the Applicant has, as he asserts, already earned remission bringing him close to two-thirds of his term served, that is a matter of record with the Prisons Service and operates, where applicable, to advance his date of release; it does not confer on this Court a power to convert his outstanding term into a non-custodial sentence, nor is an application to this Court the correct means of securing it, remission being administered by the Prisons Service itself and not ordered by a court.
9. The second is the prerogative of mercy under Article 133 of the Constitution and the Power of Mercy Act, 2011, which allows the President, acting on the recommendation of the Power of Mercy Advisory Committee, to grant a free or conditional pardon, a remission of part or the whole of a sentence, or a substitution of a less severe form of punishment, having regard to matters including the conduct of the offender while serving the sentence and any rehabilitation undertaken. This is precisely the kind of relief the Applicant seeks — a second chance grounded in remorse and demonstrated rehabilitation — and it is a power the Constitution vests exclusively in the Executive, not the Judiciary. This Court has no jurisdiction to pre-empt or substitute for that process by ordering, in effect, a discretionary reduction of a mandatory sentence that Parliament has fixed and that Manyeso confirms this Court has no power to vary.
10. Article 165(3)(b) of the Constitution, relied upon by the Applicant, vests this Court with jurisdiction to determine the denial, violation, infringement, or threat to a right or fundamental freedom in the Bill of Rights. The Applicant has not identified any right that continued service of a lawfully imposed sentence violates; a lawful sentence, correctly imposed after a fair trial in which the requirements of mitigation were satisfied, does not become a violation of any right merely because the prisoner has since reformed or served a substantial portion of it. Article 165(3)(b) accordingly confers no free-standing jurisdiction on this Court to grant the relief sought.
Disposition
11. For the foregoing reasons, I find and hold as follows:
(a). This Court has no jurisdiction to convert the Applicant's lawfully imposed mandatory minimum sentence of 15 years under Section 8(3) of the Sexual Offences Act into a non-custodial sentence, or to treat the period served as sufficient in substitution for it, whether on the grounds of time served, remorse, or rehabilitation;
(b). The sentence imposed remains the lawful and only sentence prescribed for the offence, and this Court declines to vary it, in accordance with Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR);
(c). The Application is dismissed;
(d). For the avoidance of doubt, this dismissal is without prejudice to the Applicant's right to pursue: (i) remission of sentence for good conduct through the Kenya Prisons Service, under Section 46 of the Prisons Act; and (ii) a petition for exercise of the prerogative of mercy under Article 133 of the Constitution and the Power of Mercy Act, 2011, neither of which lies within the jurisdiction of this Court to grant;
(e). No order as to costs.
It is so ordered.
Delivered at Kericho on 16th July 2026
In the presence of
Ms. Loice Osoro for the State
Vincent Kiprono Langat – Applicant
Court Assistant – Irene