https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10089

Kasiva v Director of Public Prosecutions (Petition E010 of 2025) [2026] KEHC 10089 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 10089 (KLR) Republic of Kenya In the High Court at Machakos Petition E010 of 2025 EO Bitta, J June 9, 2026 Between Jackson Wambua Kasiva Petitioner and Director Of Public Prosecutions Respondent Judgment 1.The Petitioner in this case, Jackson Wambua Kasiva, a convict currently serving a life sentence at Kamiti Maximum Prison, moved the High Court at Machakos vide his petition dated 15th January 2025 against the Director of Public Prosecutions. 2.The Petitioner cites the provisions of Articles 2(1), 2(4), 2(5), 2(6), 10(1), 10(2), 19(1), 19(2), 19(3), 20(1), 20(2), 20(3), 21, 22,23(1), 24, 25, 27,28,29,50,165 and 258 of the Constitution as a basis for his petition. 3.By way of a background to the case, the Petitioner was arrested on 13th May 2010 and detained at Kithimani Police Station. He was charged with the offence of defilement contrary to section 8(1) as read together with (2) of the Sexual Offences Act 2006, in Kithimani Criminal case no. 10 of 2010 before Hon. Mwangi (SRM). 4.The Petitioner was convicted and sentenced to life imprisonment on 21st April 2011. 5.The Petitioner then unsuccessfully appealed against the decision of the trial court, first before the High Court in Machakos Criminal Appeal No. 206 of 2011, which was dismissed on 18th February 2014, and subsequently before the Court of Appeal in Nairobi Criminal Appeal No. 15 of 2017, which was also dismissed on 28th June 2019. 6.The Petitioner’s grounds for the present petition are that the trial procedure was conducted unfairly, as the Petitioner was not allowed to mitigate as provided under sections 216 and 329 of the Criminal Procedure Code. 7.The Petitioner avers that the trial magistrate's failure to accord him an opportunity to mitigate violated his right to a fair trial. 8.Reasons for which the Petitioner seeks the following reliefs from the court. 9.A declaration that the right of the Petitioner was violated, hence a recourse under Article 50(6) of the Constitution, together with any other law that prescribes the procedure of plea taking and production of evidence in court, hence the Petitioner was not accorded a fair hearing, and therefore the trial was null and void. 10.A declaration that the Petitioner, having not been allowed to mitigate for a lenient sentence, violated his right to a fair trial under Article 25(c) of the Constitution. 11.Such other and further orders that the Court may deem just and expedient to grant. 12.The Respondent opposed the petition and filed grounds of opposition dated 26th November 2025. 13.The Respondent contended that the petition is not only misconceived but also bad in law, since the sentence sought to be reviewed was determined by the High Court in Machakos High Court Criminal Appeal No. 206 of 2011 and by the Court of Appeal in Criminal Appeal No. 15 of 2017. 14.The Respondent contended that since the Court has pronounced itself on sentence, it is functus officio. 15.Lastly, the Respondent contended that the sentences under the Sexual Offences Act are mandatory and therefore the court cannot interfere with them. 16.Both parties filed rival written submissions articulating their respective positions. 17.The Petitioner submitted that sentencing is an integral component of a fair hearing and must comply with constitutional and statutory safeguards. 18.The Petitioner submitted that courts have consistently held that mitigation is mandatory and forms the foundation of individualized and proportionate sentencing. 19.The Petitioner cited several court decisions, Ouma & another v Republic (Criminal appeal no. 131 of 2020), Furaha v Republic (Criminal appeal no. 45 of 2020), Dimba & another v Republic (Criminal Appeal No. 3 of 2020), and Mbugua & 9 others v Attorney-General & 3 others (Petitions E002& E003 of 2024) as supporting his position. 20.The Petitioner also filed rebuttal submissions to the Respondent’s argument that the Court has jurisdiction pursuant to Article 50(6) of the Constitution and that the mandatory life sentence imposed is excessive, inhuman, and degrading, contrary to Article 29(1) of the Constitution. 21.He submitted that section 8(1), as read together with Section 8(2), of the Sexual Offences Act is discriminatory and unconstitutional to the extent that it removes judicial discretion and the right to mitigation, in violation of Articles 27 and 50(2)(p) of the Constitution. 22.I have considered the Petition together with the supporting affidavit of the Petitioner, the grounds of opposition filed by the Respondent, the submissions in support of and in opposition to the petition, and I have identified the following issues as falling for determination. 23.Whether the court is functus officio 24.Whether the Petitioner’s trial was conducted unfairly, contrary to the Constitution and applicable statute 25.Whether the Petitioner’s rights were violated and what relief, if any, the Petitioner is entitled to. 26.I will start with the issue of whether the court is functus officio because a positive determination on the same would render the petition non-justiciable. 27.Our Supreme Court has had to elucidate on the concept of functus officio. In Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), the court held as follows;“…18.We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The principle is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550: “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors, nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied]. 28.It is common ground that the Petitioner challenged the decision of the trial court before this court in Criminal Appeal No. 206 of 2011, where the Court pronounced itself with finality through a judgment dated 18th February, 2014 (Hon. Lady Justice Jaden). 29.The Petitioner, being aggrieved by the decision of this court, preferred an appeal to the Court of Appeal, being Nairobi Criminal Appeal No. 15 of 2017. 30.Can the Petitioner bring back for determination to the High Court, the same issue or any other issue which he may have brought before the court in the previous proceeding challenging the process, finding, or sentence by the trial court? I don’t think so. 31.It is a trite law that a party is enjoined to bring out all issues arising from a matter before the court, and that piecemeal litigation is not permitted in the interest of finality in dispute resolution before courts. 32.Our Supreme Court observed as follows in Karani v Judicial Service Commission [2022] KESC 37 (KLR)“…105.Further, the appellant faulted the Court of Appeal for finding that since he did not raise the defence before the respondent’s sub-panel, he was therefore precluded from raising it anywhere else. He argued that judicial immunity, being anchored in the Constitution and being a jurisdictional issue, is immutable and can be raised at any time, even on appeal. On this issue, we find we cannot fault the Court of Appeal. It is a long-held practice that parties are precluded from arguing their cases piecemeal. They must present the entirety of their case at the first instance to allow the courts, or administrative bodies in this case, to make a full and final determination of all pertinent issues relevant to a case. On this issue, we are persuaded by the decision of the Court of Appeal in Pop In (Kenya) Ltd & 3 others vs Habib Bank AG Zurich (1990] KLR 609 where the court held that: But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram VC in Henderson v Henderson (1843) Hare 00, 115, where the judge says: ‘Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”106.In the present case, the appellant should have used every defence in his arsenal at the first instance, while he was before the Committee of the respondent defending himself. When he failed to do so, he was precluded from raising preliminary arguments thereafter, more so on appeal to the Court of Appeal. 33.On the same breath, I hold that questions touching on the procedural propriety and legality of the trial process before the Subordinate Court at Kithimani ought to have been raised in the earlier proceedings before the High Court. 34.I have no hesitation in finding that since this court has already exercised its supervisory jurisdiction over the proceedings, findings, and sentence of the trial court in Kithimani Criminal case No. 10 of 2010, this Court is functus officio over the same. 35.This finding obviates the determination of issues whether the Petitioner’s trial before the superior court violated his rights as alleged or at all, and whether the trial contravened the constitution or applicable law. 36.It is to be observed that the Petitioner, in his rebuttal submissions, introduced new issues not arising from the pleadings and sought additional reliefs not sought in the petition. I will refrain from considering and determining the said. 37.I am also aware that the Supreme Court has pronounced itself on the legality of the sentences imposed under the Sexual Offences Act in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae), where the court held as follows;“…55.Turning to the specific issue confronting us in this appeal, we are of the view that, in failing to follow the Muruatetu decision and later Directions, the Court of Appeal’s blanket application of the ratio decidendi in the Muruatetu case conflated the concept of mandatory sentences with minimum sentences.56.Black’s Law Dictionary, 9th Edition, defines a mandatory sentence as follows: “A sentence set by law with no discretion for the judge to individualize punishment.” While a minimum sentence is as defined as follows: “The least amount of time that a convicted criminal must serve in prison before becoming eligible for parole.”57.Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences, however, set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and a minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different sets of meanings and circumstances.58.In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply, for example, to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature take into consideration a number of issues, including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.iii.Whether minimum sentences as prescribed in the Sexual Offences Act are unconstitutional, and (iv) whether courts have discretion to impose sentences below the minimum prescribed by the Sexual Offences Act.64.Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have a grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.Conclusion69.Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on October 7, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the respondent and affirmed by the first appellate court was lawful and remains lawful as long as section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence. 38.The Petitioner sought recourse under Article 50(6) of the Constitution, which provides that a person who is convicted of a criminal offence may petition the High Court for a new trial if the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal and new and compelling evidence has become available. 39.The Petitioner in this case has neither alleged nor demonstrated that there is new and compelling evidence that has become available to merit the invocation of the provisions of Article 50 (6) of the Constitution. 40.It is the Court’s finding that the provisions of Article 50 (6) of the Constitution are not applicable in the circumstances of the present petition, where there is neither new nor compelling evidence that became available to the Petitioner that has been presented before the Court. 41.The upshot is that I find the petition dated 15th January 2025 lacking in merit and liable for dismissal.I order the petition dismissed, each party to bear their own costs SIGNED, DATED, AND DELIVERED AT MOMBASA, THIS 9TH DAY OF JUNE 2026.EMMANUEL BITTAJUDGE OF THE HIGH COURT