https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10059

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CRIMINAL REVISION NO. E029 OF 2024** **JOSEPH KARIUKI MAINA ……………….…..........................……APPLICANT** **VERSUS** **PROSECUTION..…………………...................................................RESPONDENT** **RULING** 1. The applicant seeks re-sentencing by reduction of the sentence of imprisonment for fifteen (15) years for the offence of gang defilement under section10 of the Sexual Offence Act which was imposed on him by the trial court on 17/7/2024. 2. In passing the sentence the trial court considered the applicant’s mitigation and pre-sentence report and said: “***Court:*** *I have considered the pre-sentencing report. It was positive. The accused is a first offender and remorseful.* ***However, I impose the minimum sentence that is fifteen (15) years jail term under the charging law. The sentence to run from 2/10/2020 the day of arrest.*** *S. M. Nyaga* *17/7/2024”* 1. In so doing, the trial court complied both with the law as settled by the Supreme Court that the courts have no authority to sentence below the mandatory minimum sentences in Sexual Offences Act and the ***Proviso*** for taking into account of pre-trial detention under section 333(2) of the Criminal Procedure Code. 2. In the trilogy of cases ***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)]*, the Supreme Court has guided as to the sentences in Sexual Offences 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%22%20%5Ct%20%22_blank), 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.”* ***(Republic v Ayako*, supra.)** 1. The penalty for gang defilement under section 10 of the Sexual Offences Act is imprisonment for not less than fifteen (15) years, which may be enhanced to life. In accordance with the Supreme Court guidance in ***Mwangi, Manyeso*** and ***Ayako*** decisions, the court has no authority to revise the sentence to reduce it below he mandatory minimum sentence. 2. However, *by the Submissions dated 21/1/2026, the applicant urges that his* ***“submissions are prepared and filed for the decongestion exercise pursuant to the Chief Justice’s memo dated 7/12/2022, which provides that inmates who are serving three (3) years or less or those serving long sentences but have a balance of three (3) years or less may be considered for non-custodial sentence.”*** 3. In seeking resentencing, the applicant relied on pre-2025 cases which had allowed the review of sentences pursuant to a Chief Justice’s Memo of 7/12/2022 for decongestion where various offenders whose terms were almost at an end were revised to Community Service Orders. The non-custodial community service orders were made where the offenders had three years or less to complete their sentences as in ***Okwemba v Republic*** (Criminal Revision 207 of 2024) [2024] KEHC 10822 (KLR) (17 September 2024) (Ruling) a case of defilement contrary to section 8(1) as read with 8(2) of the [Sexual Offences Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2006/3) No. 3 of 2006; ***Odindo v Republic*** [2024] KEHC 10826 (KLR) for the offence of Robbery with Violence contrary to section 295 as read with 296(2) of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81) where offenderwas sentenced to serve 10 years imprisonment; ***Kiama v Republic*** [2024] KEHC 9118 (KLR) for offence of robbery with violence contrary to section 295 as read with 296(2) of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81) where offender was sentenced to death and on appeal sentence reduced to twenty (20) years imprisonment to run from the date of arrest; ***Rehema v Republic*** [2024] KEHC 10909 (KLR) for offence of conspiracy to defile contrary to section 157 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81), and sentenced to serve 3 years imprisonment. In count 2, she was convicted for gang defilement and sentenced to 7 years imprisonment***;*** and ***Kebane v Republic*** (Miscellaneous Criminal Application E002 of 2024) [2024] KEHC 9424 (KLR) (18 July 2024) (Ruling) for the offence of murder contrary to Section 203 as read with Section 204 of the [Penal Cod](https://kenyalaw.org/akn/ke/act/1948/81)e. 4. While the Court does not determine that offenders under Sexual Offences Act may not benefit from the Community Service Orders under section 3 of the Community Service Order Act, the applicant’s sentence runs from date of arrest on 2/10/2020, and he has only served four (4) and eight (8) months of his 15-year imprisonment sentence, and even with 1/3 remission accounted, he has 5 years 2 months to complete his sentence. The application for revision of sentence even on the basis of decongestion program under the Chief Justice’s Circular of 7/12/2022 does not succeed. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that there is no merit in the application for resentencing in this matter and it is declined. 2. File closed. **DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Applicant in person s Mr. Mwangi for Respondent.