https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8422

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NOE114 OF 2026** **BETWEEN** **OBWOGI JONATHAN…...…………………………..………………..1ST PETITIONER** **SOLOMON NGATIA…………………………………………………..2ND PETITIONER** **JOSEPH LODIAKA…………………………………………………...3RD PETITIONER** **GIBSON MAKINI…………………………………………………….4TH PETITIONER** **DUNCAN KIMUTAI BII………………………………………………5TH PETITIONER** **STEPHEN MUHIKA………………………………………………….6TH PETITIONER** **ERICK SIRO MARORO……………………………………………….7TH PETITIONER** **LENGUSURANGA MAISKI…………………………………………....8TH PETITIONER** **JOSEPH NAKOLE EMATHE………………………………………….9TH PETITIONER** **NAHASHON NDIRANGU……………………………………………..10TH PETITIONER** **PETER KIPRONO SALIM…………………………………………...11TH PETITIONER** **DAVID KIBUI MAINA………………………………………………12TH PETITIONER** **DAVID MURUKONG CHESANG………………………………………13TH PETITIONER** **PHILIP NJOROGE MACHARIA……………………………………...14TH PETITIONER** **PETER MUHARI ESIRIMA………………………………………….15TH PETITIONER** **JOHN KAMAU GATHONGO………………………………………….16TH PETITIONER** **JACOB KAHIGA NDUNGU…………………………………………...17TH PETITIONER** **JOHN KIPKOECH LANGAT………………………………………….18TH PETITIONER** **SOLOMON MAINA WAIRAGU……………………………………….19TH PETITIONER** **DAVID MUKURIA NDUNGU…………………………………………20TH PETITIONER** **LAWRENCY NYAMBOKE MACHIRA…………………………………21ST PETITIONER** **GILBERT KIBET RUTO……………………………………………..22ND PETITIONER** **GEOFFREY KIPKOECH KIMETO……………………………………23RD PETITIONER** **PAUL NJOROGE KAMAU…………………………………………....24TH PETITIONER** **PATRICK KIRUMA KANIARU……………………………………….25TH PETITIONER** **ZEPHANIA KIPKIRUI NGETICH……………………………………26TH PETITIONER** **SAMUEL KIPKOECH LANGAT………………………………………27TH PETITIONER** **STEPHEN JOHN MUTUKU…………………………………………..28TH PETITIONER** **JOHN BUSAULE WATI………………………………………………29TH PETITIONER** **VERSUS** **REPUBLIC…………………………………………………………..1ST RESPONDENT** **ATTORNEY GENERAL………………………………………………2ND RESPONDENT** **AND** **KATIBA INSTITUTE………………………………………...1ST INTERESTED PARTY** **JUSTICE DEFENDERS……………………………………….2ND INTERESTED PARTY** **FEDERATION OF WOMEN** **LAWYERS-KENYA (FIDA – KENYA)……………………..….3RD INTERESTED PARTY** **THE CRADLE-CHILDREN FOUNDATION…………………….4TH INTERESTED PARTY** **EQUALITY NOW……………………...……………………..5TH INTERESTED PARTY** **INTERNATIONAL JUSTICE MISSION………………………..6TH INTERESTED PARTY** **AND** **KENYA LEGAL AND ETHICAL ISSUES NETWORK** **ON HIV & AIDS (KELIN)…………………………………………1ST AMICUS CURIAE** **INITIATIVE FOR STRATEGIC LITIGATION IN AFRICA (ISLA)….2ND AMICUS CURIAE** | | | --- | | Ruling | 1. The application before the court is dated 20th February 2026. It seeks, inter alia, the following orders: 2. ***That this honourable court be pleased to certify this application and petition as extremely urgent and hear it exparte on a priority basis in the first instance; and*** 3. ***That this honourable court be pleased to empanel a bench of 3 judges, pursuant to Article 165 (4) of the Constitution of Kenya, 2010, to hear and determine this petition.*** Prayers 3, 4, and 5 of the Notice of Motion dated 20th February 2026 are not under consideration at this point. 1. The basis of the application is that, for as long as the impugned provisions remain operative, the rights of persons sentenced under the mandatory sentencing framework are violated, including the non-derogable right to a fair trial under Article 50(4) and the right to human dignity under Article 28 of the Constitution of Kenya, 2010. The petitioners contend that time served under an unconstitutional mandatory sentence constitutes irreversible harm that cannot be compensated. 2. The Petitioners state that the right to a fair trial cannot be limited under any circumstances. They cited the case of **Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)** in that regard. It was stated that the Supreme Court in **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)** at paragraph 63 expressly stated that, “there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder.” 3. The applicant cited 3 cases where there was jurisprudential divergence. The said cases were before the High Court, the Court of Appeal and the Supreme Court. The applicant noted that the jurisprudential conflict had persisted for over 6 years across multiple court levels and created acute legal uncertainty that demands urgent resolution by a properly constituted bench of the High Court. 4. It was urged that there was a need for empanelment of an uneven bench of judges to determine questions on: 5. **Whether mandatory minimum sentences that eliminate all judicial discretion violate the non-derogable right to fair trial under Article 25(c) of the Constitution;** 6. **Whether Article 1(3) and 160(1) of the Constitution are violated by legislative provisions that usurp the core of the judicial function of individualized sentencing;** 7. **The proper scope and application of Article 24 proportionally and minimal impairment tests to mandatory sentencing regimes;** 8. **Whether the impugned provisions can be read down to constitute presumptive rather than mandatory minimums, consistent with Article 259 of the Constitution;** 9. **Whether comparative constitutional jurisprudence from the apex courts internationally supports invalidation of absolute mandatory minimum sentences;** 10. **The relationship between Article 27 on equality, and mandatory sentencing frameworks that treat radically different factual circumstances identically;** and 11. **The nature, scope, and application of the Muruatetu proportionality principle beyond the death penalty.** 12. The application was opposed by the Attorney General and the 4th Interested Party. 13. The Attorney General urged that the Supreme Court had considered and determined the constitutionality of the minimum sentences. In her view, the Apex Court's decision is binding on this honourable court under the doctrine of *stare decisis*, as expressed in Article 163(7) of the Constitution of Kenya, 2010. 14. It was urged that the Supreme Court in **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)** determined that mandatory minimum sentences under the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to impose sentences that are less severe than those provided for in the Sexual Offences Act, 2006. 15. The Attorney General, while conceding that sentencing is an exercise of judicial discretion, averred that it is parliament and not the judiciary that sets the perimeters of sentencing for each crime in statute. The Attorney General deprecated the consolidated petitions for failing to add the Parliament of Kenya as a party, being the body, by dint of Article 94 of the Constitution of Kenya, 2010, with the exclusive mandate to enact provisions having the force of law in Kenya. 16. It was urged that the constitutionality of Section 124 of the Evidence Act had been conclusively determined by the High Court in **Lumbasi v Republic [2016] KEHC 2942 (KLR)** and by the Court of Appeal in **DON v Republic [2022] KECA 120 (KLR)**. Thus, it was urged that the issue is *res judicata*. 17. Lastly, the Attorney General contended that the constitutionality of Section 137 of the Criminal Procedure Code was conclusively determined by the High Court in **Mwai v DPP; JNM (Interested Party) [2023] KEHC 3021 (KLR).** 18. The application was canvassed by way of oral and written submissions. The oral submissions were made before this Court on 6th May 2026. 19. I will set out the précis of the parties' submissions below. 20. Mr Attalo, for the 1st Petitioner, invited this Court to certify the petition as raising substantial questions of law and to refer the same to the Chief Justice for empanelment of an uneven number of judges to hear and determine it. Counsel urged that the 5 pronged test enunciated by Mrima, J, in the case of **Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education & 7 others; Kenya Private Schools Association (KPSA) & 4 others (Interested Parties) [2021] KEHC 1927 (KLR)** had been met. 21. Counsel urged that the Petition raised issues of great public importance and that it was founded on the invitation of the Supreme Court in the case of **Republic v Mwangi** (supra). Mr Attalo contended that the Supreme Court's finding demonstrated the importance of the matter. He thus prayed that the Court issue the appropriate orders. 22. Mr Okumu, learned counsel for the 2nd to the 29th Petitioners, supports the application. He contended that it was necessary for a 3-judge bench of the High Court to determine whether prior decisions on the subject matter of the Petition were binding. Though conceding that the Mwai decision did not find the mandatory minimum sentences in sexual offences unconstitutional, he maintained that a 3-judge bench of the High Court could authoritatively interpret the Supreme Court decision and that its decision would carry sufficient weight, as opposed to the decision of one judge, which would be significantly less persuasive. 23. Counsel further submitted that it was necessary for the Court to settle jurisprudence once and for all. 24. Mr Yamina, representing the Director of Public Prosecutions, supported the application. He submitted that a 3 judge bench of the High Court would settle the law. 25. Mr Hamisi Mzari, learned counsel for the 2nd Interested Party, submitted that 60-70% of incarcerated convicts in the Kenyan correctional system were convicted of sexual offences. He urged that there was a need for a review of the Sexual Offences Act and the sentencing regime, as the current practice placed a heavy burden on Kenyan taxpayers. Counsel stated that the instant Petition was novel. In his view, treating minimum sentences for murder differently from those for sexual offences constituted impermissible discrimination that breached Article 27 of the Constitution. 26. Mr Ochieng Oginga, learned counsel for the 5th Interested Party, submitted that the Petition transcended the parties and was of great public importance. He stated that different courts had made conflicting decisions and that it was necessary for a 3-judge bench of the High Court to be empanelled to give proper directions on the way forward. 27. Ms Eileen Imbosa, for the 6th Interested Party, supported the application. She stated that the Petition raised questions of law with far-reaching implications that needed to be determined with finality. She thus urged the Court to allow the application. 28. Mr Kaumba, representing the Hon Attorney General, opposed the application. He identified the 3 questions for determination as the constitutionality of mandatory minimum sentences in the Sexual Offences Act, the constitutionality of section 124 of the Evidence Act, and the constitutionality of section 137N of the Criminal Procedure Code. 29. Counsel contended that the Supreme Court found that mandatory minimum sentences for sexual offences were constitutional in the case of **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)** (supra). He denied the need for a 3-judge bench of the High Court to hear and determine the matter, contending that a single judge would be equal to the task. 30. Mr Kaumba urged that there were limited judicial resources which ought not be wasted by having 3 judges hear a matter that one judge was best suited to handle. 31. Counsel submitted that the application was an abuse of the Court's process and prayed that it be dismissed. 32. I have considered the applications, the responses thereto, and the oral and written submissions of the parties. The 1st Petitioner seeks that this court refer the matter to the Chief Justice so that she may appoint an uneven bench of judges to hear and determine the petition. 33. Whither goest the Court? The Petition before me most certainly raises weighty issues of great public importance. At the same time, judicial resources are scarce and must be used carefully and as efficiently as possible. In making the determination, the Court must strike a careful balance. Thus, they must be used carefully. The empanelment of an uneven bench of judges must be done only where it is absolutely necessary. 34. Under Article 165(4) of the Constitution, the uneven bench of judges may be empanelled where a substantial question of law has been raised regarding the Bill of Rights or the interpretation of the Constitution. 35. In **James Opiyo Wandayi & others v Kenya National Assembly, Speaker of the National Assembly & Attorney General [2016] KEHC 3163 (KLR) Odunga, J** (as he then was) held that: ***“14. According to the above provision, it does not suffice that the matter raises the issue whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or that it raises the issue of interpretation of the Constitution. The Court must go further and satisfy itself that the issue also raises a substantial question of law. As to whether this is the case is a matter for judicial determination based on the facts of the particular case and the law involved. This was appreciated in Community Advocacy Awareness Trust & Others vs. The Attorney General & Others High Court Petition No. 243 of 2011, where it was noted that:*** ***“The Constitution of Kenya does not define ‘substantial question of law.’ It is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine the matter.”*** 1. In the above-stated matter, the learned judge quoted with approval the holding in the case of **Chunilal V. Mehta vs Century Spinning and Manufacturing Co., AIR 1962 SC 1314**, where it was held that: ***“A substantial question of law is one which is of general public importance or which directly and substantially affects the rights of the parties and which has not been finally settled by the Supreme Court, the Privy Council or the Federal Court or which is not free from difficulty or which calls for discussion of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the questions are well settled, and there is a mere question of applying those principles, or that the plea raised is palpably absurd, the question would not be a substantial.”*** 1. In the case of Mrima, J, in the case of Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education & 7 others; Kenya Private Schools Association (KPSA) & 4 others (Interested Parties) [2021] KEHC 1927 (KLR) held that a Court before whom an empanelment application is made must take into account the following considerations: ***“19. Drawing from the foregoing, it comes to the fore that a Court dealing with a request for empanelment of an expanded must take into account the following considerations: -*** ***i. The matter to be certified must fall within the terms of Article 165(3)(b) or (d) of the Constitution.*** ***ii.The matter must raise substantial question(s) of law.*** ***iii. For a case to be certified as one involving a substantial point of law, the intending applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest.*** ***iv. The applicant must show that there is a state of uncertainty in the law.*** ***v. The applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.*** ***vi. The matter is of immense public importance and has unique significance in our constitutional democracy.*** ***vii. Whether the matter is complex.*** ***viii. Whether the matter raises novel points of law.*** ***ix. Whether the matter by itself requires a substantial amount of time to be disposed of.*** ***x. The effect of the prayers sought in the Petition.”*** 1. Distilling the above decisions, a substantial question is one: 2. Directly or indirectly affects substantial rights of the parties, and that the issues raised transcend the circumstances of the particular case and have a significant bearing on the public interest; 3. The questions raised are of great public importance and affect our constitutional democracy; 4. The questions of law raised are novel, requiring open discussions on matters that have not been settled by the Supreme Court; 5. The issue is of great difficulty; and 6. It calls for alternative views. 7. Does this matter meet the above test? It is my view that the constitutionality of the sentences applicable to sexual offences affects the substantial rights of persons. It has been urged that the sentences breach the non-derogable right to a fair trial and impose irreparable harm. 8. I agree that the issues raised are of great public importance. This is clear given that the Supreme Court itself, in the case **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)**, invited litigation such as the one now before the court. The Apex Court stated in the said matter that: ***“Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu, which must remain binding to all courts below.”*** 1. It is instructive that the Supreme Court, prior to making the above determination, observed as follows in the preceding paragraph of its decision: ***“Having so stated, we are aware that mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, USA, Australia, South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed…”*** 1. Contrary to what the counsel for the Attorney General submitted, the question is not settled. There can be no better evidence of that fact than the fact that the Director of Public Prosecutions, who, unlike the Attorney General, actually prosecutes sexual offences, chose to support the empanelment application. 2. It is also the case that, in resolving the matter, the court will have to balance competing viewpoints, in particular, society, which may feel that the interests of vulnerable members of society call for stiffer sentences, and those of the accused persons, whose constitutional rights are affected. 3. Lastly, there are alternative viewpoints that the court will grapple with. T**he Court of Appeal and the High Court have, in several decisions, ruled that mandatory minimum sentences for sexual offences are unconstitutional.** In the case of **Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR),** Odunga, J,as he then was,held that: ***“In my view, the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences or non-optional sentences. My view is, in fact, supported by the Kenya Judiciary Sentencing Policy Guidelines, where it is appreciated that:*** ***Whereas mandatory and minimum sentences reduce sentencing disparities, they, however, fetter the discretion of courts, sometimes resulting in grave injustice, particularly for juvenile offenders.*** ***97. Mine is not a lone voice crying in the wilderness. The Court of Appeal***[***Christopher Ochieng vs Republic***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/59)***[2018] eKLR, the Court of Appeal stated that:*** ***“Arising from the decision in Francis Karioko Muruatetu & Another vs Republic SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed or the offence of murder by section 204 of the Penal Code was unconstitutional…In this case, the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the***[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3)***, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis…Needless to say, pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefor with a sentence of 30 years imprisonment from the date of sentence by the trial*** court.” 1. I agree with the position of the petitioners that the decision of an uneven bench of the High Court will have greater currency than that of a single judge. 2. In view of the foregoing and taking into account all the relevant matters, I am satisfied that the petition raises substantial questions of law as contemplated under Article 165(4) of the Constitution, as to justify the empanelment of a bench of an uneven number of judges of this court of not less than three assigned by the Chief Justice. I so certify. 3. Accordingly, I direct that this petition be transmitted to the Hon. The Chief Justice forthwith for purposes of empanelling that bench. 4. The rest of the prayers in the Notice of Motion dated **20th February 2026** shall be considered by the expanded bench of the High Court. 5. Mention before the expanded bench of the High Court on **14th July 2026** for further directions. 6. Due to the nature of the matter, parties shall bear their own costs of the application. 7. It is so ordered. **Dated and signed in Nairobi, this 11th day of June 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Mr **Atallo,** for the **Petitioner;** Ms **Ntabo,** holding brief forMr **Jami Yamina,** for the **1st Respondent;** Mr **Ochieng Oginga,** for the **5th Interested Party;** Ms **Leitoro,** holding brief forMr **Kaumba,** for the **2nd Respondent;** Ms **Namulanda,** for the **1st Amicus Curiae;** Ms **Namulanda,** holding brieffor **Ms Achieng Orero** and Ms **Odali,** for the **2nd Amicus Curiae;** Ms **Balongo,** holding brief for **Ms Imbosa,** for the **6th Interested Party;** Ms **Aoko,** for the **4th Interested Party;** Mr **Okumu,** for the **2nd to 29th Petitioners;** Ms **Okumu,** holding brief for Mr **Hamisi Mzari**, for the **2nd Interested Party; and** Ms **Kalondu - Court Assistant**.