[2025] KEHC 16982 (KLR)
The court held that it lacked jurisdiction to review the applicant's sentence because the matter had already been conclusively determined by the High Court, which is a court of concurrent jurisdiction. The principle of functus officio applied, precluding the court from reopening or reconsidering the sentence....
Source-derived case information.
- Citation
- [2025] KEHC 16982 (KLR)
- Parties
- Applicant: Saulo Ng’ang’a Kairu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 046 of 2022
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentence Review, Mandatory Minimum Sentences, Defilement Offence, Functus Officio, Constitutional Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saulo Ng’ang’a Kairu
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already determined by a court of concurrent jurisdiction.
- 2 Whether the mandatory minimum sentence for defilement under the Sexual Offences Act is unconstitutional or subject to judicial discretion.
- 3 Whether Section 333(2) of the Criminal Procedure Code applies to the applicant's circumstances.
Ratio Decidendi
The court held that it lacked jurisdiction to review the applicant's sentence because the matter had already been conclusively determined by the High Court, which is a court of concurrent jurisdiction. The principle of functus officio applied, precluding the court from reopening or reconsidering the sentence. Furthermore, the Supreme Court's clarification in Republic v Mwangi & Others confirmed that mandatory minimum sentences under the Sexual Offences Act remain valid and are not rendered unconstitutional by the Muruatetu decision. As such, the application for sentence review was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Kairu v Republic (Criminal Miscellaneous Application 046 of 2022) [2025] KEHC 16982 (KLR) (21 January 2025) (Ruling)
Neutral citation: [2025] KEHC 16982 (KLR)
Republic of Kenya
In the High Court at Nyahururu
Criminal Miscellaneous Application 046 of 2022
LN Mutende, J
January 21, 2025
Between
Saulo Ng’Ang’A Kairu
Applicant
and
Republic
Respondent
Ruling
1. Saulo Ng’ang’a Kairu, the Applicant was charged, convicted and sentenced for the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. He proffered an appeal to the High Court which was dismissed in its entirety. (See HCCRA No. 146 of 2017). Being satisfied with the decision, he did not appeal to the Court of Appeal.
2. Through an application dated 3rd August, 2022 he urges the court to review the sentence in Nyahururu Magistrate’s Cr. Case No. 35 of 2015, where he was sentenced to serve life imprisonment. That under the provisions of the Constitution of Kenya, 2010 and Practice and Procedure Rules 2010 the court has power to hear and determine infringements of fundamental rights and award remedies. The Applicant also seeks invocation of Section 333(2) of the Criminal Procedure Code.
3. The Applicant relied on Mueke Maingi & 5 Others v DPP Petition No. E017 of 2021 where the High Court declared that court’s discretion in sentencing should not be fettered by mandatory minimum sentencing provisions.
4. I have considered averments by the Applicant. It is worth noting that this matter was considered and determined by the High Court, which is of a concurrent jurisdiction with this court which divests this court of the authority to re-open the case. The High Court did issue a final order on sentence hence it’s functus officio.
5. Additionally, in Republic v Mwangi & Others Petition No. E018 of 2023 (2024) KESC 34(KLR) the Supreme Court stated that the decision of Muruatetu didn’t invalidate mandatory sentence, minimum sentence in the Penal Code, the Sexual Offences Act or in any other statutes.
6. From the foregoing the application by the Applicant is without merit. Accordingly, it is dismissed.
7. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JANUARY, 2025. ……………………L.N. MUTENDEJUDGE