https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10870

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **FROM THE ORIGINAL CASE FILE NO. 29050 OF 2016** **HIGH COURT CRIMINAL APPEAL NO. 125 OF 2016** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **MISC APPLICATION NO. E040 OF 2022** **THE CONSTITUTION OF KENYA SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL** **HIGH COURT PRACTICE AND PROCEDURE RULES, 2010.** **AND** **IN THE MATTER OFSENTENCE IN ACCORDANCE WITH ARTICLE 2(5) AND (6) , 19, 20,21,22, ,23, 24, 25, ,26, 27, 28, 165 , 258, AND 259 OF CONSTITUTION.** **AND** **IN THE MATTER OF ARTICLE 22 (1 AND 23 OF THE CONSTITUTION OF KENYA 2010.** **AND** **IN THE MATTER OF SECTION 10 OF THE SEXUAL OFFENCES ACT 2006 CAP 63 LAWS OF KENYA.** **AND** **IN THE MATTER OF SUPREME COURT DECISION IN REGRARD TP NANDATORY NATURE OF SENTENCE DECLARED UNCONSTITUTIONAL** **AND** **IN THE MATTER OF ARTICLES 3 AND 10 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.** **BETWEEN** **JACOB KIPKEMOIT ROTICH............................................................APPLICANT** **AND** **DIRECTOR OF PUBLIC PROSECUTIONS ...................................RESPONDENT** **RULING** 1. By a Notice of Motion dated 31st May 2022, filed on even date, the Applicant seeks that this Court hears and determine his application for redress and reduction the sentence of 15 years imprisonment which he termed as too harsh and excessive in the circumstances. 2. Citing ***KKM vs Republic [2017]eKLR***, he argued that the evidence of a single witness especially in rape cases cannot sustain a conviction. He stated that he was too young when he was arrested and convicted for the offence and therefore, he urged the Court to consider time served in prison as sufficient rehabilitation. 3. He further stated that he has taken advantage of the rehabilitation programmes available in prison where he has undertaken Bible Courses and awarded a Certificate. That he is now remorseful for the offence and therefore seeks probation sentence or reduction of the sentence. 4. When the parties appeared before this , the Applicant stated that he was convicted and sentence by the lower court at Molo to serve 20 years imprisonment for the offence of Gang Rape. 5. He appealed to High Court Nakuru on both the conviction and sentence . The conviction was sustained but the sentence was reduced to 15 years imprisonment . His appeal to Court of Appeal on both conviction and sentence were dismissed. He therefore prayed that the sentence runs from the date he was arrested. 6. Upon being served with that application, Ms Anyumba for the Respondent indicated that she had filed grounds of opposition dated 17th February, 2026 . However, none are in the Case Tracking System or in the physical court file. **Determination** 1. Upon perused of the material before this Court and available in the Case Tracking System (CTS), this Court has noted that indeed the Applicant was arraigned before Molo Law Courts in Criminal Case No. 2905 of 2015 where he was charged with the offence of Gang Rape contrary to Section 10 of the Sexual Offences Act 2006. He also faced an alternative charge of committing an Indecent Act with an adult contrary to Section 11 of the Sexual Offences Act , 2006. Upon hearing both the parties, the trial court found the Applicant guilty of the main charge and sentenced him to serve Twenty (20) years imprisonment. 2. Aggrieved by both conviction and sentence, he moved to High Court vide HCCRA No. 125 of 2016 and on 9th May 2018, High Court sustained the conviction but set aside the sentence of 20 years imprisonment and substituted it with a minimum mandatory sentence of 15 years imprisonment as provided for under the Act. Further, the Court ordered that the sentence run from the date of conviction in the lower court. 3. Dissatisfied, the Applicant moved to the Court of Appeal at Nakuru vide Criminal Appeal No. 49 of 2018 challenging both conviction and sentence. In the Judgment delivered on 7th February 2025, the three Court of Appeal Judges dismissed the appeal in its entirety. 4. In the circumstances, this Court lacks jurisdiction to review or interfere with the sentence in any way as invited by the Applicant. Consequently, the application 31st May 2022 is dismissed in its entirety. **Dated and signed at Nakuru this 15th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 16th Day of July 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**