https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10098

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CRIMINAL REVISION NO. E061 OF 2024** **DAVID MUTHIE MUNANU ………….….................................……APPLICANT** **VERSUS** **PROSECUTION..…………………...................................................RESPONDENT** **RULING** 1. The applicant seeks review of the sentence of imprisonment for twenty (20) years for the offence of defilement contrary to Section 8(1) and (3) of the Sexual offences Act passed on him by the trial court on 16/1/2020. In sentencing, the trial court did not take into account the period of pre-trial detention as required by section 333(2) provision of Criminal Procedure Code. 2. The applicant was in custody throughout his trial from arraignment on 28/10/2019 to sentence on 16/1/2020. 3. At time of sentence, the jurisprudence as to mandatory minimum sentence was fluid and the trial court admirably considered as follows: *“****Sentencing*** *The court has considered the mitigation by the accused person and the circumstances of this case. Section 8(3) of the Sexual Offence Act provides that:* *Defilement with a child between the age of 12-15 years is liable upon conviction to imprisonment for a term of not less than 20 years.* *This court is aware of the debate and the emerging jurisprudence on the minimum mandatory sentence and the dis-creation of the curt, when I come to punishment and meeting out the appropriate sentence and other determination.* *The Sexual Offence Act provides for minimum mandatory sentence to be metered out. The emerging decisions from the Court of Appeal and the high court falls the sexual Offence Act for taking out the court dis-creation on what sentence to meter out. In this case this court takes note that despite of the decisions passed by the superior court, there are aggressively factors of this case that will make this court opt for the minimum mandatory sentence. As a result of the Acts of defilement the victim herein will bear the sarge of raising a child born out of an act of defilement. This has some life changing experience to the victim and her family. Hence there is need for deference. In this regard thereof, the court does sentence the accused person to an imprisonment term of 20 years.* *Hon. G. K. Odhiambo – RM* *16.01.2020”* 1. The view of the trial court was vindicated by the Supreme Court in trilogy of cases of ***Mwangi*** *[Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae)* [2024] KESC 34 (KLR)]; ***Manyeso*** [*Republic v Manyeso* [2025] KESC 16 (KLR) ] and ***Ayako*** [*Republic v Ayako* [2025] KESC 20 (KLR) ] where the court guided that the courts have no authority to interfere with the mandatory minimum sentences under the Sexual Offences Act as follows: *“45. In the*[*Republic v Mwangi Case*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34)*, 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*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)*, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/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.”* *[****R. v. Ayako****, supra.]* 1. The ***Manyeso*** directions on authority to pass alternative or substitute ‘equivalent’ imprisonment terms in place of statutory life sentence are as follows: *“68.* ***Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments.*** *When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in*[*Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/106)*(Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the*[*Supreme Court Act*](https://new.kenyalaw.org/akn/ke/act/2011/7)*. In*[*Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/13)*[2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In*[*National Bank of Kenya Limited v Anaj Warehousing Limited*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/4)*(Petition No 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act.* *69.****We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.”*** **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the mandatory minimum sentence of imprisonment twenty (20) years for the offence of defilement under section 8(1) and (3) of the Sexual Offences Act is the lawful sentence, and the application for revision of sentence is declined to that extent. 2. However, noting the period of pre-trial detention from 26/10/2019 to 16/1/2020, the court directs that the sentence of imprisonment for twenty (20) years shall commence on **26/10/2019** when the accused was arrested and detained to await his trial. 3. File closed. **DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Applicant in person. Mr. Mwangi for Respondent.