https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10161

Magu v Prosecution (Criminal Revision E238 of 2024) [2026] KEHC 10161 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10161 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Revision E238 of 2024 EM Muriithi, J July 9, 2026 Between Abrahim Munene Magu Applicant and Prosecution Respondent Ruling 1.The applicant seeks resentencing by reduction of the sentence of imprisonment for twenty (20) years passed on him by the trial court for offence of defilement under section 8(1) and 8(3) of the Sexual Offences Act on 24/1/2024. 2.The DPP opposes the revision and urges that the Supreme Court in Republic v. Joshua Gichuki Mwangi (2024) KESC 34(KLR) it was held that where a sentence is set in statue the legislative has already determined the course unless its declared unconstitutional. It is submitted that the trial court, in exercise of its sentencing discretion, which an appellate court may only interfere with on principles observed in Shadrack Kipkoech Kogo v. R Criminal Appeal No. 253 of 2003, meted a lawful sentence, which is the minimum sentence under section 8(3) of the Sexual Offences Act. 3.The applicant urged his remorse and rehabilitation while serving his sentence in prison. 4.The Record of Appeal shows the applicant was arrested on 29/9/2022 and in its sentence on 24/1/2024, the trial court did not take into account the period of pre-trial detention as the accused had been denied bail upon a negative pre-trial report, in terms of Section 333(2) of the Criminal Procedure Code. 5.Upon mitigation, the trial court said:“Court: Mitigation well noted. The accused is not remorseful at all. I will sentence him to serve 20 years imprisonment. Right of appeal 14 days.M. Opanga, P.M.24/1/2024 6.The Supreme Court in two decisions of Munyeso and Ayako subsequent to the Gichuki Mwangi case cited by the DPP has put paid the question of sentencing below the period prescribed in minimum sentences in Sexual Offences as follows:“ 45.In the Republic v Mwangi Case, this court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:“66.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”. 46.In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament. 47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.” (Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment)) Orders 7.Accordingly, for the reasons set out above, and conquest for the principles from applicant interfered in Kogo v. R (supra) cited by the DPP (and see Wanjema v. R [1971] EA 493 and the guidance of the Supreme Court on the mandatory minimum sentences in Sexual Offences in Mwangi, Mayeso and Ayako decisions, the court finds no merit in the application for revision of sentence herein and it is dismissed. 8.However, as the trial court did not take into account the pre-trial detention of the accused, the Court pursuant to section 333(2) Proviso of the Criminal Procedure Code directs that the sentence of imprisonment for twenty (20) years shall commence on 29/9/2022 when the applicant was arrested and detained to await his trial. 9.File closed. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Applicant in personMr. Mwangi for Respondent.