https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7234

Hassan v Republic (Criminal Petition E006 of 2023) [2026] KEHC 7234 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7234 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Petition E006 of 2023 RN Nyakundi, J May 26, 2026 IN THE MATTER OF ARTICLE 22(1), 23(1), 25(c), 27, 28, 50(2)(p)(q), 159(2), 160(1) & 167 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF EDWIN WACHIRA & 9 OTHERS VS REPUBLIC PETITION NO 97 OF 2021 CONSOLIDATED WITH PETITION NO 88 OF 2021, PETITION NO 98 OF 2021 AND PETITION NO. 57 OF 2021 AT MOMBASA HIGH COURT AND IN THE MATTER OF PHILIP MUEKE MAINGI & 5 OTHERS VS DIRECTOR OF PUBLIC PROSECUTIONS & ATTORNEY GENERAL, PETITION NO E017 OF 2021 AT MACHAKOS HIGH COURT AND IN THE MATTER OF SECTIONS 216, 329, AND 333(2) OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA Between Abdi Hassan Applicant and Republic Respondent Ruling 1.Before this Court is an application by the Applicant seeking the following orders:a.That, I was charged and convicted for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 in criminal case No 216 of 2017 at Eldoret CM's Court and sentenced to twenty-five (25) years imprisonment.b.That, I lodged an appeal to the High Court at Eldoret vide H.C.CR.A No 61 of 2019 but the appeal on was dismissed; conviction and sentence affirmed.c.That, I have no pending appeald.That, I was sentenced to a mandatory sentence as prescribed by section 8(2) of the Sexual Offences Act No 3 of 2006 without consideration of my mitigation or the unique facts and circumstances of my case.e.That, the High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021,98 of 2021 and 57 of 2021 at Mombasa High Court declared the application of minimum mandatory sentences as being unconstitutional and granted orders that those affected may petition the High Court for resentencing and thus the reason for this application. 2.The Applicant seeks the prayers herein:a.That, the Hon. Court be pleased to review my sentence and grant me a lenient sentence informed by my mitigation and the unique facts and circumstances of my case pursuant to Article 50(2)(p)(q) of the Constitutional of Kenya.b.That, the period spent in remand custody be computed into the eventual sentence to be awarded pursuant to the provisions of section 333(2) of the Criminal Procedure Code and also pursuant to Vincent Sila Jona & 87 Others vs the Attorney Generalc.That, the Hon. Court be pleased to grant me probation orders if my circumstances so fit.d.Any other order that the Hon. Court deems fit to give in the interest of justice. 3.In support of the application is the sworn affidavit of Abdi Hassan who deponed as follows:a.That I am a Kenyan citizen male adult of sound mind and thus duly competent to make oath before any Court in the republic.b.That, I am the Applicant herein seeking re-hearing of sentence pursuant to the decision in Edwin Wachira & 9 Others vs Republic Petition No 97 of 2021 at Mombasa High Court.c.That, directions issued by the Supreme Court on 6th July 2021 in Francis Karioko Muruatetu & Another vs Republic (2017) eKLR left it open to the High Court to her any petition that may be brought challenging inter alia mandatory minimum sentences and make a determination.d.That, the Supreme Court did not hold that the High Court ought not apply the reasoning in Francis Karioko Muruatetu & Another vs Republic (2017) eKLR.e.That, I was charged and convicted for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006 in criminal case No 216 of 2017 at Eldoret CM's Court and sentenced to twenty-five (25) years imprisonment.f.That, I lodged an appeal to the High Court at Eldoret vide H.C.CR.A No 61 of 2019 but the appeal on was dismissed; conviction and sentence affirmed.g.That, I was sentenced to a mandatory sentence as prescribed by section 8(2) of the Sexual Offences Act No 3 of 2006 without consideration of my mitigation or the unique facts and circumstances of my case.h.That, the High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021, 98 of 2021 and 57 of 2021 at Mombasa High Court declared that the impugned provisions of the Sexual Offences Act No 3 of 2006 prescribe minimum mandatory sentences, with no discretion to the trial Court to determine the appropriate sentence to impose taking into account an accused person's individual circumstances and mitigation, such sentences fall foul of the right to a fair trial guaranteed under Article 50 of the Constitution because mitigation and sentencing are part of a fair trial process.i.That, Courts should, as far as possible, have unfettered discretion in relation to sentencing.j.That, sentencing discretion permits balanced and fair sentencing, which is a hallmark of enlightened criminal justice and the absence of this crucial discretion is potentially prejudicial to an accused person.k.That, the impugned mandatory minimum sentences are discriminatory in nature because they give differential treatment to a convict under the impugned provisions distinct from the kind of treatment accorded to convicts under other offences which do not impose mandatory sentences, so, mandatory violate an accused person's rights under Article 27 of the Constitution.l.That the High Court issued an order that persons convicted and imprisoned under the Sexual Offences Act No. 3 of 2006 are at liberty to petition the High Court for mitigation and re-sentencing.m.That, the Hon. Court be pleased to review my sentence and grant me a lenient sentence informed by my mitigation and the unique facts and circumstances of my case pursuant to Article 50(2)(p)(q) of the Constitutional of Kenya.n.That, may the period spent in remand custody be computed into the eventual sentence to be awarded pursuant to the provisions of section 333(2) of the Criminal Procedure Code and also pursuant to Vincent Sila Jona & 87 Others vs the Attorney General.o.That, this Honourable Court is seized of competent jurisdiction under Article 165(3)(b) of the Constitution of Kenya to hear and determine this matter.p.That, I am a convict hence a pauper who cannot incur any costs for the preparation of this application thus pray that such costs be waived. Decision 4.This is a second bite of the cherry by the Applicant in the form of a Criminal Petition. Just as a reminder on 3rd day of November 2022 this Court ruled as follows:a.The appellant was sentenced to 25 years in prison. Section 8(2) of the Sexual Offences Act states; 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.b.The recent directions on the decision of the Supreme Court in Francis Karioko Muruatetu v Republic given on 6th July 2021 clarified that the provisions of the case were only applicable to cases of murder.c.The trial Court was lenient with his sentence and this Court finds no reason to set the same aside. In the premises, the appeal fails in its entirety. 5.It is trite that a question of fact or law distinctly put in issue and directly determined by a Court of competent jurisdiction cannot afterwards be distributed between the same parties. In a criminal proceeding the State or the Government through the Director of Public Prosecution is one of the parties perhaps this self-evidence fact is sometimes disregarded when the representatives are changed or the indictment varies, unless such disregard is imputed to many opinions and there would be no legal logic to reopen such proceedings against the same parties. The doctrine of res judicata is of such great moment in criminal proceedings that when invoked by a Court of law it may give the character of truth or finality in a matter which may in fact not deserve the exercise of judicial discretion by a Court of law. Res judicata in our legal system has its flows from the realm of civil law in Section 7 of the CPA is not a mere rule of procedure, but a rule of justice unlimited in operation, which must be enforced whenever its enforcement is necessary for the protection of rights and the preservation of the repose of society, based on the grounds that there should be an end to litigation, and that a person should not be twice vexed for the same cause. It is not disputed that in our criminal justice system where a criminal charge has been adjudicated upon by a Court having jurisdiction. It is final as to the matter adjudicated and may be pleaded in bar. In this respect the criminal law is in unison with that which prevails in civil proceedings. 6.The Courts should frequently be reluctant to admit such application on review of sentence for reason that the Applicant is seeking a remedy beneath the service of a judgment to which res judicata may be properly applied. It is astounding that in very many situations that the doctrine can be so grossly ignored by Court in pretexts on one sought or another. 7.What are the matters in a prior record which cannot be re-argued? Four factors might be considered in approaching a record to determine what issues must have been settled by judgment: concessions, admissions, stipulations and reasonable certainties. If a relevant fact in the case for the State is conceded to the State by the accused, it is a part of the judgment. Likewise, an admission of a relevant fact is part of the judgment. Along with relevant stipulations, these are parts of the decision on the merits. Since they were not put in issue at the first trial, they cannot be put in issue in a later proceeding between the same parties. 8.The test of whether the fact or facts decided in a prior proceeding will bar a second proceeding is not whether it is a successive step in a transaction. It is rather whether the offense charged in the second indictment necessarily involves the fact or offense charged in the first indictment. If a fact is a requisite of both offenses, or if the first offense is essential to the second, res judicata is invoked to bar the second proceeding, assuming the fact or offense went in favor of the accused in the first trial. 9.In the instant case the situation is not different from what it was decided by this Court on previous judgment on appeal when this Court dismissed both conviction and sentence on appeal as against the same Applicant to this motion. That’s why res judicata rears its head against reopening the proceedings on sentence. The best I can do for this application is to dismiss it under Section 382 of the CPC. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026.…………………………R. NYAKUNDIJUDGE