https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7339

Musungui v Republic (Miscellaneous Criminal Application E004 of 2025) [2026] KEHC 7339 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7339 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Application E004 of 2025 JN Kamau, J May 28, 2026 Between Lucas Musungui Appellant and Republic Respondent Ruling Introduction 1.The Applicant was charged with the offence of defilement contrary to Section 3(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Learned Trial Magistrate, Hon Dennis O. Ogal (RM), convicted him of the main charge and sentenced him to life imprisonment. 3.Being dissatisfied with the said Judgement, he lodged Kakamega HCCRA No 34 of 2016, but the same was dismissed. He filed a second Appeal in Court of Appeal Criminal Case No 179 of 2017, which allowed his Appeal and reduced the sentence of life imprisonment to thirty (30) years, which was to run from the date that he was first sentenced. 4.In his Notice of Motion application dated 20th December 2024 and filed on 14th January 2025, the Applicant herein sought that his sentence of thirty (30) years imprisonment that had been reduced from life imprisonment be further reduced to the least prescribed one on account of his age and terminal chronic illness. 5.He averred that he was a person with disability pursuant to Paragraph 3.2 of the Sentencing Policy Guidelines. He referred this court to Articles 54 and 29(f) of the Constitution of Kenya and Article 14 of the UN Convention on the Rights With Persons with Disabilities. He averred that the sentence was excessive for his age and illness. 6.His Written Submissions were dated 13th August 2025 and filed on 4th September 2025, while those of the Respondent were dated 22nd September 2025 and filed on 23rd September 2025. The Ruling herein is based on the said Written Submissions, which both parties relied upon in their entirety. Legal Analysis 7.In his Written Submissions, the Applicant reiterated his mitigating circumstances of age and illness, and urged this court to review his sentence. He added that he had been reformed, re-adapted, and that he was remorseful. He pointed out that the ten (10) years he had been in prison were too long. He furnished this court with a letter dated 14th November 2023 showing that he was remorseful and had reformed, copies of the certificates of skills evidencing that he had learnt in prison, and a letter dated 28th May 2025 indicating the medication he was on. 8.He stated that he suffered from high blood pressure and ulcers. He averred that he had to rely on other prisoners to support him. He asserted that this was proof that he was no longer a danger to the public. He submitted that continued incarceration was tantamount to slow death. 9.To buttress his arguments, he relied on the provisions of Articles 1(3), 2(3)(4), 19(2), 27(1)(2), 20(3)(a)(b) and 28 of the Constitution of Kenya and the case of Wilson Kipchirchir vs Republic [2019] eKLR, where the court observed that keeping such a sick person in hospital under harsh conditions when he was not even a danger to himself ought to prick the conscience of humanity and the entire criminal justice system. 10.On its part, the Respondent cited Republic vs Jagani & Another (2001) KLR 590, where it was held that the purpose of sentence was to assist in the rehabilitation of the offenders. It contended that the sentence that was imposed upon the Applicant was to instill a sense of responsibility for his actions and also allow for his rehabilitation. 11.It submitted that this court had no jurisdiction to determine this matter as it had no power to supervise superior courts in view of Article 165(6) of the Constitution of Kenya. It relied on the case of John Kagunda Kariuki vs Republic [2019] eKLR, where it was held that the High Court could not review the decision of the Court of Appeal. 12.It added that the offence that the Applicant was charged with attracted a mandatory minimum sentence and that, as was held in the case of Republic vs Joshua Gichuki Mwangi & Others (citation not given), the Supreme Court held that it was only Parliament and not the Judiciary that set the parameters of sentencing for each offence. 13.It submitted that the Applicant had not filed any document to demonstrate that he was ill and of advanced age. It asserted that he was receiving health services as was provided in Article 43 of the Constitution of Kenya. It thus asked this court to dismiss the application as the victim would forever remain traumatised. 14.Article 165(5) of the Constitution of Kenya stipulates as follows:-“The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162(2).” 15.In the Kenyan legal system, the Court of Appeal stood higher in hierarchy than the High Court. Once it pronounced itself on an issue, the High Court could not deal with the same, as the decision of the Court of Appeal was binding on it. 16.The Applicant herein was sentenced under Section 8(2) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: -“A person who commits an offence of defilement with a child between the age of eleven years or less shall upon conviction be sentenced to imprisonment for life.” 17.The Court of Appeal reduced the Applicant’s sentence from life to thirty (30) years. It also pronounced itself on when the sentence would run. This court could not, therefore, consider the time which the Appellant had spent in custody during trial pursuant to Section 333(2) of the Criminal Procedure Code. 18.Notably, the Court of Appeal reduced the Applicant’s sentence on 6th October 2023. In a decision that was delivered on 12th July 2024 in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR in which the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it had held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 19.The letter dated 28th May 2025 showing the medication the Applicant was on was written on behalf of the In-Charge Kisumu Maximum Prison by Eunice A. Wandor, ASP/ CO In-Charge. The same did not state that the Prison was unable to meet his medical needs. As the Respondent correctly pointed out, the Applicant did not furnish the court with any medical documentation to show that the prison health facilities were unable to manage his medical condition, which could have perhaps persuaded this court to consider his application. Accordingly, in the absence of new circumstances contemplated in the Judiciary Sentencing Guidelines, 2013, this court found and held that it had no jurisdiction to entertain the present application. 20.As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercise of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Applicant herein undisturbed. DIsposition 21.For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s undated Notice of Motion application that was filed on 14th January 2025 was not merited and the same be and is hereby dismissed. 22.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 28TH DAY OF MAY 2026J. KAMAUJUDGE