Koech v Republic (Criminal Miscellaneous Application E003 of 2023) [2026] KEHC 10965 (KLR) (16 July 2026) (Ruling)

Koech v Republic (Criminal Miscellaneous Application E003 of 2023) [2026] KEHC 10965 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10965 (KLR) Republic of Kenya In the High Court at Kericho Criminal Miscellaneous Application E003 of 2023 JC Mutai, J July 16, 2026 Between Bernard Kiprono Koech Applicant and Republic Respondent Ruling 1.The Applicant has filed an undated Application but received at the Court registry on 8th January 2023 seeking a review of sentence in Criminal Case No. 42 of 2014 at Kericho, in which he was 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 where he was sentenced to life. The Applicant grounded his application for review that; the provisions of the constitution of Kenya and practice and Procedure Rules 2010 of this Court has the power to hear and determine infringements of fundamental rights and award the remedies. 2.In his supporting affidavit, the Applicant states that he appealed the sentence to this Court vide HCCRA No. 16 of 2015 at Kericho which Appeal was dismissed in its entirety. He filed an Appeal to the Court of Appeal which Appeal is yet to be heard hence his application for re-sentencing. He states that this Court has jurisdiction to hear and determine his application under Article 165(3)(b) of the Constitution of Kenya. He relies on the decision in Petition No. E017 of 2021 Philip Mueke Maingi & 5 others vs. DPP at Machakos and the High Court at Mombasa in the Constitutional & Judicial Review Division, Petition No. 97 of 2021, Edwin Wachira & 9 Others vs. Republic where the court declared that Courts discretion in sentencing should not be fettered by mandatory minimum sentencing provisions. 3.He further states that the Court stated that those who were convicted of sexual offences and those whose sentences were passed on the basis of the trial courts had no discretion but to impose the said mandatory minimum sentences are at liberty to petition the High Court for mitigation and sentencing. 4.He prayed that this Court award him a lenient definite sentence as provided for under Article 50(2)(p)(q) and that the Court be pleased to invoke the provisions of Section 333(2) of the Criminal Procedure Code and the period he spent in remand be factored in the sentence to be awarded. 5.The state objected to the Application on the grounds that the sentence was lawful, and if the accused was dissatisfied he ought to have appealed to a higher Court. The Application was an abuse of the Court process and should be dismissed. The State further opposed the application under Section 333(2) of the CPC. Analysis and determination 6.The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 whose particulars are that on the 3rd day of June 2014 at Tugunon Village in Kipkelion District within Kericho County intentionally and unlawfully caused h is penis to penetrate the vagina of C. C., a child aged 3 years. After full trial he was found gulty of the offence and convicted to serve life imprisonment. The offence carries a mandatory life sentence. 7.Two issues fall for determination: first, whether this Court has jurisdiction to entertain the Application at all, given that the Applicant's appeal against conviction and sentence is presently pending before the Court of Appeal; and second, if jurisdiction exists, whether the mandatory life sentence prescribed under Section 8(2) of the Sexual Offences Act is amenable to review and resentencing as the Applicant contends. 8.On the first issue, the Applicant has disclosed that his first appeal to this Court, HCCRA No. 16 of 2015, was dismissed, and that he has since lodged a further appeal to the Court of Appeal, which remains pending and unheard. This Court is being asked, in effect, to review and potentially set aside the same sentence that is simultaneously before a superior court on appeal. To do so would risk two courts reaching inconsistent outcomes on the same sentence, and would amount to this Court pre-empting a matter properly before the Court of Appeal. 9.This position was recently affirmed in Mwangangi v Republic [2025] KEHC 7860 (KLR), where the Court held that an applicant who has proceeded on appeal to the Court of Appeal cannot simultaneously move the High Court to interfere with the same sentence. The present case is, if anything, a stronger one for declining jurisdiction, since in Mwangangi the Court of Appeal had already determined the appeal, whereas here it has not yet been heard; the sentence under challenge remains squarely within that court's seisin. I find that this Court lacks jurisdiction to entertain the Application while the Applicant's appeal remains pending before the Court of Appeal, and that to proceed would be premature and an abuse of the process of this Court. 10.Although the foregoing is dispositive of the Application, I address the merits in the alternative, given the arguments advanced. The Applicant's case rests substantially on Philip Mueke Maingi & 5 Others v Director of Public Prosecutions (Petition E017 of 2021) [2022] KEHC 13118 (KLR) and Edwin Wachira & 9 Others v Republic, Petition No. 97 of 2021 (Mombasa), both of which held that mandatory minimum sentences under the Sexual Offences Act offended Article 28 of the Constitution and were amenable to resentencing. That position must now be read in light of subsequent, binding authority. The Supreme Court's directions in Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) confined the reasoning in Muruatetu I to the mandatory death sentence prescribed under Section 204 of the Penal Code for murder, and expressly cautioned lower courts against extending it to other mandatory or minimum sentencing provisions. More decisively, the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) — a case arising, as here, from a conviction under Section 8(2) of the Sexual Offences Act — set aside the Court of Appeal's substitution of the mandatory life sentence with a fixed term, holding that such judicial substitution of mandatory sentences is a usurpation of legislative authority and offends the doctrine of separation of powers. Applying this, the High Court in Mwangangi (supra) held explicitly that the holdings in Maingi and Wachira are inapplicable, and that a sentence of life imprisonment imposed under Section 8(2) of the Sexual Offences Act "remains the only legal sentence" available for that offence. I respectfully adopt that reasoning. Accordingly, even were this Court seized of jurisdiction, the Application would fail on the merits: the sentence imposed on the Applicant was, and remains, the lawful and only sentence prescribed for the offence, and this Court has no power to substitute it with a definite term. 11.As to the prayer under Section 333(2) of the Criminal Procedure Code that the period spent in remand be factored into the sentence, that provision operates to reduce a determinate term of imprisonment by the period already spent in custody. A sentence of life imprisonment, being indeterminate, has no fixed term against which such a period can be offset, and the provision can have no practical application to it unless and until the sentence is varied by a court of competent and properly seized jurisdiction. This prayer accordingly cannot be granted at this stage, without prejudice to the Applicant raising it before the Court of Appeal, or upon any lawful variation of his sentence in future. 12.For the foregoing reasons, I find and hold as follows:Republic v Manyeso [2025] KESC 16 (KLR);(a)This Court declines jurisdiction to entertain the Application while the Applicant's appeal at the Court of Appeal Criminal Appeal remains pending and undetermined;(b)In any event, and in the alternative, the Application would fail on the merits, the sentence imposed under Section 8(2) of the Sexual Offences Act being the lawful and only sentence prescribed for the offence, per per Republic v Manyeso [2025] KESC 16 (KLR)(c)The prayer for credit under Section 333(2) of the Criminal Procedure Code is declined at this stage, for want of a determinate term to which it can apply;(d)The Application is dismissed, without prejudice to the Applicant's right to pursue the sentencing issue in his pending appeal before the Court of Appeal; DELIVERED AT KERICHO ON 16TH JULY 2026CHELANGAT MUTAIJUDGEIn the presence ofMs. Loice Osoro for the StateBernard Kiprono Koech – ApplicantCourt Assistant – Irene