Amboka v Republic (Criminal Petition E006 of 2023) [2026] KEHC 5034 (KLR) (21 April 2026) (Ruling)

Amboka v Republic (Criminal Petition E006 of 2023) [2026] KEHC 5034 (KLR) (21 April 2026) (Ruling) Neutral citation: [2026] KEHC 5034 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Petition E006 of 2023 AC Bett, J April 21, 2026 Between Matumayo Malika Amboka Petitioner and Republic Respondent Ruling 1.The Petitioner filed a Notice of Motion application seeking a review of his 15-year sentence, stating that the mandatory sentence was unconstitutional. The application is premised on Articles 19, 20(1) (2), 23(1), 27, 28 and 50(2) of the Constitution. 2.He avers that he was charged, tried and convicted for the offence of defilement contrary to Section 8 (1)(4) of the Sexual Offences Act No. 3 of 2006 and was sentenced to serve 15 years’ imprisonment, which he now contends is unconstitutional. 3.He states that he had appealed to the High Court within the stipulated time but was never informed of the outcome, and now prays that a review of the 15-year sentence made and the provisions of Section 333 (2) of the Criminal Procedure Code applied to his sentence. 4.He further states that he is remorseful over the offence, and that he has enrolled in both certificate and diploma transformational programs and prays for a chance to be heard in view of the decision by Justice G.V Odunga dated 17th May 2022, in which he declared the minimum mandatory sentence unconstitutional. 5.The Respondent filed grounds of opposition dated 27th October 2025, stating that matters of amendment of the law are a legislative function and that there has not been any amendment to section 8 of the Sexual Offences Act. They contend that the penalty remains lawful, as held by the Supreme Court, and argue that courts lack jurisdiction to interfere with such a sentence; hence, the petition lacks merit and ought to be dismissed. 6.In their written submissions, the Respondent contends that this court lacks the jurisdiction to interfere with the mandatory minimum sentence as the law provided for a sentence of 15 years under section 8 (4) of the Sexual Offences Act. 7.The Respondent relies on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [ 2024] KESC 34 (KLR) and Apopo v Republic [2025] KEHC 6429 (KLR). 8.Concerning the application under Section 333 (2) of the Criminal Procedure Code, the Respondent states that the Petitioner had been in custody throughout the trial and that at the sentencing stage, the court never complied with the provisions. They quote the case of Ahmad Abolfathi Mohammed & another v Republic [2018 KECA 743 (KLR)] and state that the petition lacks merit, as the sentence imposed was lawful, but fault the trial court for failing to comply with Section 333(2) of the Criminal Procedure Code. Analysis and Determination 9.The Petitioner was convicted under section 8(4) of the Penal Code which stipulates that:“A person who commits an offence of defilement with a child between the ages of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 10.According to the Petitioner, the mandatory minimum sentence that was imposed by the trial court was unconstitutional, and the court did not exercise its discretion as required. 11.In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (supra), the Supreme Court addressed the constitutionality of minimum mandatory sentences under section 8 of the Sexual Offences Act. The apex court made a clear distinction between mandatory sentences, which fixed a specific punishment with no discretion, and minimum mandatory sentences, which gave the court discretion to impose a higher sentence depending on the circumstances of each case. 12.In Kittiny v Republic [2018] KECA 851 (KLR), the Court of Appeal observed that sentencing courts must exercise discretion in appropriate cases following the reasoning in the Muruatetu Case. The Court stated that:-“The decision of the Supreme Court in Muruatetu rendered the mandatory aspect of the death sentence unconstitutional and opened the door for courts to consider appropriate sentences after taking mitigation into account." 13.It held that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR applied only to the mandatory death sentence under Section 204 of the Penal Code and did not extend to minimum sentences prescribed by Parliament in the Sexual Offences Act. 14.The Supreme Court’s binding pronouncement therefore overtakes the Petitioner’s reliance on the 2022 Odunga ruling. The 15-year sentence imposed was therefore lawful and cannot be reviewed or reduced on constitutional grounds. 15.The court notes the Petitioner’s mitigation where he stated that he was remorseful for his actions and that he had rehabilitated and even enrolled in his transformational courses. However, this court cannot overlook the clear statutory provisions and sentencing guidelines that the Supreme Court has issued. The court is bound by the doctrine of stare decisis. See the Court of Appeal case of Zakayo Oketch Omiti v Republic [2025] KECA 429(KLR). 16.Upon perusal of the trial court records, I find that the Petitioner was accorded a fair trial where he was granted an opportunity to mitigate by the trial court, which had the opportunity to hear and observe the witnesses as they tendered evidence. In the circumstances, it is my view that the trial court exercised its discretion and imposed the minimum mandatory sentence correctly. 17.Regarding the second issue, Section 333(2) of the Criminal Procedure Code provides that:-“Subject to the provisions of section 38 of the Penal Code, where a person is sentenced to imprisonment for an offence, any period which he has spent in custody in connection with that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.” 18.The Respondent concedes that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code. This provision is mandatory, as observed by the Court of Appeal in Ahmad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), which held that:-“Failure to meaningfully account for custody time under Section 333(2) CPC violates fair trial rights under Article 50(2), as it ignores the period served, rendering the sentence excessive. The Court emphasised: "It is not enough... to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of conviction" 19.Having perused the court records, it is clear that the trial court's failure to consider the time the Petitioner spent while in custody was irregular, an irregularity which this court can indeed correct pursuant to its revisionary power without disturbing the lawful minimum mandatory sentence of 15 years. 20.In the end, I hold that the petition succeeds only to the limited extent of the prayer relating to Section 333(2) of the Criminal Procedure Code. 21.The prayer to review or set aside the sentence of 15 years on constitutional grounds or on account of mitigating factors is dismissed as this court is devoid of jurisdiction to interfere with the same. The sentence remains lawful and is hereby upheld. 22.The sentence of 15 years’ imprisonment shall take full account of the period the Petitioner spent in custody before sentencing, in compliance with Section 333(2) of the Criminal Procedure Code. The sentence shall be deemed to run from the date the Petitioner was first arraigned in court and remanded in custody, which is 28th June 2017. 23.It is so ordered. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 21ST DAY OF APRIL 2026.A. C. BETTJUDGEIn the presence of:The Petitioner in personMs. Chala for the RespondentCourt Assistant: Polycap