[2025] KEHC 1775 (KLR)
The court held that it lacked jurisdiction to grant the orders sought by the applicant because the Supreme Court has affirmed the constitutionality and binding nature of mandatory minimum sentences under the Sexual Offences Act. The applicant had already exhausted all appellate remedies, including appeals to the...
Source-derived case information.
- Citation
- [2025] KEHC 1775 (KLR)
- Parties
- Applicant: Chris Musyoki Musee; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E042 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing and Consideration of Time Spent in Remand
- Outcome
- application dismissed
- Judges
- LW Gitari
- Legal Topics
- Sentencing Principles, Mandatory Minimum Sentences, Judicial Discretion, Sexual Offences, Constitutional Review, Remand Time Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chris Musyoki Musee
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing and Consideration of Time Spent in Remand
Legal Issues
- 1 Whether the court can consider time spent in remand under Section 333(2) of the Criminal Procedure Code for the applicant.
- 2 Whether the mandatory minimum sentence under the Sexual Offences Act is unconstitutional in light of recent Supreme Court decisions.
- 3 Whether the applicant is entitled to resentencing or probation after exhausting appellate remedies.
Ratio Decidendi
The court held that it lacked jurisdiction to grant the orders sought by the applicant because the Supreme Court has affirmed the constitutionality and binding nature of mandatory minimum sentences under the Sexual Offences Act. The applicant had already exhausted all appellate remedies, including appeals to the High Court and Court of Appeal, both of which upheld the sentence. The court further found that Section 333(2) of the Criminal Procedure Code did not apply because the applicant was released on bond the same day he was arraigned and did not spend time in remand awaiting trial. Accordingly, the sentence imposed was lawful, and the application was without merit and not properly...
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No orders as to resentencing or probation.
Full Case Text
Judgment text and source record
24 paragraphs
Musee v Republic (Miscellaneous Criminal Application E042 of 2024) [2025] KEHC 1775 (KLR) (19 February 2025) (Ruling)
Neutral citation: [2025] KEHC 1775 (KLR)
Republic of Kenya
In the High Court at Kitui
Miscellaneous Criminal Application E042 of 2024
LW Gitari, J
February 19, 2025
Between
Chris Musyoki Musee
Applicant
and
Republic
Respondent
Ruling
1. The applicant has filed a Notice of Motion under Articles 22, 23 & 165 (7) of the Constitution of Kenya 2010 and Section 333 (2) of the Criminal Procedure Code. The main prayer is that this court be pleased to consider the time spent in remand awaiting trial and reduce the sentence imposed on him by that period. He also prays that the remaining sentence be served on probation.
2. The application is based on the grounds that he was convicted on a charge of incest contrary to Section 20 of the Sexual Offences Act and was ordered to serve a sentence of life imprisonment. His appeal to the High Court vide Criminal Appeal No. 61 of 2013 was dismissed on 17/09/2014. He lodged a second Appeal in The Court of Appeal in Criminal Appeal No. 140 of 2015 was also dismissed on 19/06/2020.
3. He relies on the case of Edwin Wachira & 9 Others. Petition No. 97/2021 and prays that he be allowed to mitigate and the court to order resentencing. He also relies on Constitutional Petition No. E017/2021, Philip Mueke Maingi & 5 Others v Republic [2022] eKLR. He has urged the court to consider that the time spent in prison is enough for rehabilitation.
4. I have considered the Notice of Motion. The applicant relies on the case of Edwin Wachira & Others v Republic where the High Court declared the mandatory minimum sentence under Section 8(2) (3) (4), 11(1), 20 (1) and 3(3) of the Sexual Offences Act as unconstitutional as they deprive the court the discretion to determine the appropriate punishment taking into account the individual circumstances of each case, that they offend the notion of fair trial contemplated under Article 50(1) of the Constitution of Kenya 2010.
5. This decision has since been overruled by the Supreme Court in the case of Republic v Joshua Gichuki Mwangi Petition No. 181 of 2023 where it overturned a Court of Appeal Judgment granting Judges and Magistrates power to hand sex offenders lesser sentences than those prescribed in the Sexual Offences Act and affirmed, the mandatory sentences provided in the Sexual Offences Act. The Supreme Court held that mandatory minimum sentences do not deprive Judicial Officers of the power to exercise Judicial discretion.
6. The Supreme Court reiterated that its decision in Muruatetu did not invalidate the mandatory sentences in the Penal Code, Sexual Offences Act or any other statute. The decision binds this court by dint of Article 163(7) which provides that, “All courts other than the Supreme Court, are bound by the decisions of the Supreme Court”. The Supreme Court also re-affirmed that it is parliament and not the Judiciary that set the parameters of sentencing for each crime in the statute. The applicant had appealed to the Court of Appeal according to what he has stated. The Court of Appeal declined to interfere with sentence based on the Supreme Court Muruatetu Guidelines where the Supreme Court held that the decision in Karioko Muruatetu & Another v Republic [2015] eKLR only applies in case of murder under Section 203 as read with Section 204 of the Penal Code and does not apply in the Sexual Offences Act.
7. This court lacks jurisdiction to entertain the application as the Court made a decision which binds this Court. I also note that the applicant had filed an appeal in the High Court at Garissa, Criminal Appeal No. 61 of 2013 seeking a review of the sentence under Article 159(2)(c) of the Constitution which was dismissed.
8. I find that the applicant has exhausted all channels of appeal on sentence. The record shows that the applicant was released on bond the same day he was arraigned in court for plea. Section 333(2) of the Criminal Procedure Code does not apply as he did not spend time in custody awaiting trial. The sentence imposed was lawful and remains lawful. This application is without merits and is not properly before this court.
9. The applicant has exhausted all avenues available to him for review and appeal on the sentence. The application is dismissed.
DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF FEBRUARY 2025HON. LADY JUSTICE L. GITARIJUDGE