https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13070

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **CRIMINAL MISCELLANEOUS APPLICATION NO. E024 OF 2024** **IN THE MATTER OF ARTICLE 2 (1), 3 (a), 10(2),19 (2), 20 (1) 22(1), 23 (1), 25 (c), 26(1) 27 (1) (4), 28, 50 (2) (p) (q), 159 (2) AND 165 (3), OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (Protection of Rights and Fundamental Freedoms ) PRACTICE AND PROCEDURE RULES 2010** **AND** **HIGH COURT OF PHILIP MUEKE MAINGI & 5OTHERS VS D.P.P & ATTORNY GENERAL PETITION N0. 17 OF 2021 AT MACHAKOS HIGH COURT** **AND** **IN THE MATTER OF SECTION (8) (1) AS READ WITH SECTION 8 (2) OF THE S.O.ACT** **AND** **IN THE MATTER OF SECTION 333 (2) OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA** **BETWEEN** **LAWRENCE NYAMBOKE MACHIRA ..........................................................APPLICANT** **AND** **REPUBLIC ........................................................................................................RESPONDENT** ***(Sentence re-hearing in the case of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act (SOA) No. 3 of 2006. The Applicant was convicted and sentenced to LIFE imprisonment as a mandatory minimum sentence)*** **RULING** 1. By an undated application filed on 26th February 2024, the Applicant seeks that he be awarded a lenient definite sentence, citing Article 159 of the Constitution. He also seeks that this Court invokes Section 333 (2) of the Criminal Procedure Code. 2. He states that this Court has discretion on sentencing, citing the decision in Dismas Wafula Kilweka vs Republic Petition No. 15 and 16 of 2021. He further states that he was a first offender and therefore urges this Court to consider that he is now an elderly man and his life is greatly affected by life in prison. 3. Further, he states that he has undergone rehabilitation while in prison as reflected by the documents he annexed herein. 4. Relying on the High Court at Machakos Constitutional Petition No. 17 of 2021, he argued that the mandatory minimum sentences in the Sexual Offences Act No. 3 of 2006 were declared unconstitutional and that the Court ordered that those sentenced under the minimum sentence apply to the High Court for sentence re- hearing. He therefore states that this Court has jurisdiction under Article 165 (3) (b) of the Constitution to hear and determine this application. 5. His Application is opposed by the Respondent herein vide a Replying Affidavit sworn on 3rd June,2025 by James Kihara, Prosecution Counsel. Highlighting the journey travelled by the Applicant from the trial Court through to the Court of Appeal, he deposed that this application lacks merit as this Court lacks jurisdiction to review a decision of a Court of higher stature. 6. Terming the application res judicata and an abuse of court process, he urged this Court to dismiss the Application for want of jurisdiction. **Determination** 1. After hearing both parties, the issue is whether this Court has jurisdiction to grant the prayers sought. 2. This Court accessed the Courts’ records which reveal that the application is that he was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006, where he was convicted and sentenced to life imprisonment in Criminal Case No.1454 of 2012 at Naivasha CM’s Court on 24th May 2013 by Hon. E.Oboke (PM). 3. His High Criminal Appeal No. 99 of 2013 at Nakuru on both conviction and sentence was dismissed in its entirety by M. J. Anyara Emukule J on 8th November, 2013. 4. Dissatisfied with that High Court judgment, he appealed to the Court of Appeal at Nakuru in Criminal Appeal No. 202 of 2013. That Appeal was dismissed in its entirety vide judgment delivered by S. Gatembu Kairu, FCIArb and S. ole Kantai, JJA on 12th July, 2019. 5. It is worth noting that in the above Court of Appeal judgment, reference was made to ***Ahamad Abolfathi Mohamed & another vs Republic [2018] eKLR*** to Article 50 (2) of the Constitution, though it was in regard to the issue of the right to access to information. 6. This Court is alive to the fact that in ***Ahamad Abolfathi Mohamed*** (supra), the Court of Appeal also held that the period spent in custody should be considered while sentencing. 7. However, since the Appeal at Nakuru in Criminal Appeal No. 202 of 2013 was dismissed in its entirety, the issue of application of Section 333 (2) of the Criminal Procedure Code does not apply here. 8. Further, and as rightly put by the Respondent, the Applicant’s prayer that he be awarded a lenient definite sentence is untenable. This Court lacks jurisdiction to review a decision of the Court of Appeal. 9. In the circumstances, the Applicant’s Notice of Motion filed on 28th February, 2024 is dismissed in its entirety for want of jurisdiction. **Dated and signed at Nairobi this 9th Day of August, 2026.** **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 11th Day of August, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**