https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12064

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **CRIMINAL MISC. APPLICATION NO. E091 OF 2025** **IN THE MATTER OF: ARTICLE 2,23,25 (c), 27, 28, 50(2 ) (P),165 (3) (b) OF THE CONSTITUTION OF KENYA 2010.** **AND** **IN THE MATTER OF: The Sentencing Guidelines 2023** **DANIEL KIPYEGON NG’ENO ...........................................................APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS ...................................RESPONDENT** **RULING** 1. By a Notice of Motion dated 29th May 2025, filed through the firm of Gatitu Muchiri & Co. Advocates, the Applicant seeks the following Orders:- 2. ***That this Court be pleased to review, vary, or set aside the resentencing order of 5th March 203 and substitute it with a more appropriate, proportionate, and just sentence.*** 3. ***That this Court be pleased to resentence the Applicant to a lesser custodial term taking into account the Applicant’s mitigation, reformation and the time already served.*** 4. The grounds are on the face of the Motion supported by the Affidavit sworn by the Applicant on even date. He stated that he was initially convicted and sentenced to life imprisonment in Molo CMCR. Case No. 1972 of 2011 for the offence of defilement under Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. 5. He appealed that decision to the High Court vide Nakuru High Court Criminal Appeal No. 267 of 2013, but it was dismissed in its entirety vide judgment dated 3rd October, 2018. 6. He applied for resentencing in the High Court, and the Court resentenced him to 30 years imprisonment vide ruling dated 5th May 2023 and the sentence to run from 4th October 2011, which was the date of his first remand. 7. Consequently, he urged that this Court substitutes the sentence imposed herein vide resentencing Order on the grounds that, though re-evaluated, it still failed to adequately account for the Applicant’s exceptional progress in rehabilitation and the evolving sentencing jurisprudence under the Constitution of Kenya, 2010. 8. The Applicant stated that he has served 13 years in custody and has reformed. Therefore, he deserves the benefit of proportionality, rehabilitation and an individualised sentence under the Sentencing Guidelines. 9. Further, that this Court has jurisdiction and discretion to review and correct any sentence that appears illegal, improper, harsh, or excessive. 10. The Respondent filed a Replying Affidavit sworn on 29th October, 2025, by James Kihara, Prosecution Counsel in the office of the Director of Public Prosecutions. 11. Having appraised himself of the lower court Criminal Case No. 1972 of 2011 and the Sentencing Guidelines 2023, he proceeded to confirm the process and the steps taken by the Applicant since the conviction and sentence, ultimately leading to this application. 12. Rehashing the Applicant’s affidavit, he termed the Applicant's reliance on ***Francis Karioko Muruatetu & Another v Republic [Petition No. 15 of 2015] [2017] eKLR*** case as misplaced, as it applies only in death sentences and not sexual offences as clarified in ***Republic v Joshua Gichuki Mwangi [Petition No. E018 of 2023, [20241 KESC 34.*** 13. Further, he deposed that the **Sentencing Policy Guidelines, 2023, Part 4, paras 4.1-4.4,** underscore that sentencing must balance retribution, deterrence, and rehabilitation. 14. Further, he deposed that the Sentencing Policy Guidelines, 2023, Part 7, para 7.2, provide that: **“ *Whether the offender was in a position of trust, and the use of violence or threats, as these factors significantly* *aggravate the offence and its impact on the victim.”*** 15. Further, it was argued that the Applicant’s act of threatening to kill the victim if she spoke, as noted in the trial record, constitutes an aggravating act under **Para 7.2(b) of** the Sentencing Policy Guidelines, 2023, reflecting heightened victim harm. 16. It was argued that, as noted by Mumbua T. MathekaJin the resentencing judgment dated **5th May 2023,** the Applicant was convicted of defiling an 8- year-old child, warranting a stiff penalty to serve as punishment, deterrence, and to protect society, particularly young girls, from similar offences. 17. The Respondent argued that the Applicant’s engagement in wood joinery and acquisition of certificates, as evidenced by the **Kenya Prison Services Progress Report** dated **20th March 2025,** is commendable but does not outweigh the gravity of the offence, which caused profound harm to an 8-year-old victim, as emphasised in the **Sentencing Policy Guidelines, 2023, Part 22, para 22.2.** 18. The Respondent further argued that the 30-year sentence, reduced from life imprisonment, is proportionate and lenient, considering the victim’s age, the Applicant’s threats to kill her, and the societal need to deter sexual offences against children, as mandated by **Article 45(3)** of the Constitution and the Sexual Offences Act 19. He therefore urged the Court to dismiss the application. **Applicant’s submissions** 1. In his submissions, the Applicant framed three issues for determination, that is: Whether this Court has jurisdiction to review and/or vary the sentence already imposed and whether the sentence of 30 years remains harsh and disproportionate in light of the Applicant's demonstrated reformation, mitigation and constitutional guarantees. 2. On the first issue, reliance is placed on Article 165 (3) (b) of the Constitution on the powers of this Court and also invites the Court to be guided by the holding in the Supreme Court decision in ***Francis Kiriako Mutuatetu & another vs Republic [2017] eKLR*** to submit that Courts retain jurisdiction to review sentences where mandatory or disproportionate terms offend the Constitution. 3. Further, he relied on ***William Okungu Kittany v Republic [2018] eKLR*** to submit that the Court of Appeal affirmed that resentencing is available where evolving jurisprudence necessitates. Therefore, the Applicant submits that this Court is properly seized of jurisdiction. 4. On the second issue, he reiterates the arguments in his application and, citing the case ***Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR***, he urges this Court to reduce the sentence to the term served or, in the alternative, a less custodial term sufficient to meet the ends of justice. **Respondents' Submissions:** 1. Emphasising the contents of its Replying Affidavit, the Respondent further submitted that the Applicant’s failed appeals demonstrate that the Applicant’s conviction was satisfied by threedifferent Courts. 2. Regarding the Applicant’s reliance on Article 28, 29 and 50 (2) (p) of the Constitution and sentencing guidelines 2023, the Respondents submitted that while sentencing the Applicant to 30 years imprisonment, the Judge cautioned that the court cannot lose sight of the fact that the petitioner was charged with defilement, that the victim was 8 years old at that time, and that he was found guilty and convicted of the same. 3. That it was the Court's view that the Applicant deserved a stiff sentence, which was not only to serve as a punishment and as a deterrent, but also to keep the Applicant away from society for the safety of young girls like the victim herein and also from others who may be tempted to do as he did. 4. He submitted that while the Applicant’s reform while in prison is commendable, this Court should not disturb this sentence. He urged the Court to dismiss the Application in its entirety. **Determination** 1. Upon considering the material placed before this Court, it is not in dispute that the Applicant was arraigned before Molo Law Courts in Criminal Case No. 1972 of 2011 where he was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2 ) of the Sexual Offences Act 2006. The trial court, H.M. Nyaga SPM (as he then was), convicted him and sentenced him to a mandatory life sentence vide judgment delivered on 30th October 2013. 2. Aggrieved by both conviction and sentence, the Applicant appealed to the High Court vide Nakuru High Court Criminal Appeal No. 267 of 2013. In his Judgment delivered on 3rd October 2018, John N. Mativo J (as he then was) dismissed the Appeal in its entirety. 3. In an undated application lodged on 25th October, 2022, being Nakuru High Court Misc. Application No. E066 of 2022, seeking review of the sentence. He argued that the sentence was unconstitutional as the Court had argued that its hands were tied and therefore could not exercise its sentencing discretion. 4. He argued therein that the Court was bound by the Supreme Court decision in ***Francis Karioko Muruateteu & another v Republic [2017] eKLR*** and Article 163 ( 7) of the Constitution to argue that the Court had jurisdiction to resentence him. 5. However, the Supreme Court decision in ***Francis Kiriako Mutuatetu & another*** (Supra) cited by the Applicant does not apply to sexual offence but murder cases only, as clarified later by the said Court. 6. Further, the record shows that the Court considered the application, the court record, the law and the decisions on the issue as well as Sentencing Guidelines and exercised her discretion in deciding to review and substitute the sentence of life imprisonment with 30 years imprisonment. Further, the Court was alive to the Court of Appeal decision in ***Ahamad Abolfathi Mohammed & another*** (supra) as it held:- ***“ ....the term of 30 years imprisonment to be served from the date he was first held in remand custody 4th of October 2011.”*** 7. Challenging that decision before this Court in the manner he has done is tantamount to asking this Court to sit on appeal on a sentence reviewed by a court of concurrent jurisdiction. This Court lacks jurisdiction to interfere with the same at all. 8. Consequently, the application dated 29th May 2025 is hereby dismissed. **Dated and signed at Nakuru this 27th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 30th Day of July 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**