https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12428

Nandwa v Republic (Criminal Petition E018 of 2023) [2026] KEHC 12428 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12428 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Petition E018 of 2023 AC Bett, J July 31, 2026 Between Oliver Okutoyi Nandwa Petitioner and Republic Respondent Ruling 1.The Petitioner Oliver Okutoyi Nandwa was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act vide Butere SRM Criminal Case No. 284 of 2011. After trial, he was convicted of the aforesaid offence and sentenced to life imprisonment. 2.Being dissatisfied with the conviction and sentence, he lodged Kakamega HCCR.A. No. 275 of 2011, which appeal was subsequently dismissed by Chitembwe, J. on 17th December 2014. 3.Undeterred, the Petitioner opted not to pursue an appeal before the Court of Appeal but to file the present Constitutional Petition, which he did by way of Notice of Motion. The Notice of Motion is premised on articles 22 (1), 23 (1), 25 (a) (c), 27 (1), 28, 50 (2), 159 (2) and 165 (3) (a), (b), (d) (i) of the Constitution and Section 216, 329 and 333 (2) of the Criminal Procedure Code. 4.The Petitioner, who opted to urge his petition orally, seeks re-sentencing and contends that the term limit for the life sentence is ambiguous and uncertain, thus constituting a violation of his right to dignity. 5.Further, the Petitioner avers that the life sentence as a punishment defeats the purpose and rationale of the criminal justice system and, in particular, the correctional mandate, which is to ensure that the offender undergoes rehabilitation and reformation before reintegration back to society. 6.He further avers that he was arrested at the age of 15 years old and hence his constitutional rights were violated. 7.It is the Petitioner’s position that life imprisonment is unconstitutional as it denies the trial court its discretion and forces it to impose a pre-determined sentence prescribed by the legislature and which violates the doctrine of separation of powers enshrined in Article 160 of the Constitution of Kenya. 8.The Petitioner, who avers that he has reformed and undergone rehabilitation, urges the court to invoke Article 165 (3) (b) and (b) (i) (ii) of the Constitution in the interest of justice. 9.On its part, the Respondent through Ms. Chala submits that the issue of mandatory minimum sentences has been settled by the Supreme Court. 10.Having heard both parties, the issues for determination before this Court are whether the court has jurisdiction to hear the petition and whether the petition has merit. 11.Article 165 (3) of the Constitution vests the High Court with unlimited original jurisdiction in criminal and civil matters to inter alia, determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened and to hear and determine the question whether any law is inconsistent with or in contravention of the Constitution. 12.Apart from the jurisdiction to enforce the Bill of Rights, the Constitution, vide Article 165 (6), empowers the High Court to exercise supervisory powers over subordinate courts, which supervisory jurisdiction is extrapolated in Section 362 to 364 of the Criminal Code. In exercising its supervisory power, the High Court has jurisdiction to call for and examine the record of any criminal proceedings before the subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings recorded before the subordinate court. 13.The Petitioner concedes that his appeal before the High Court was dismissed. At that point, this court became functus officio and could not revisit the case for purposes of reviewing the sentence. Given the clear mandate donated by the Constitution, the High Court has no jurisdiction to revisit its own decision for purposes of revision. In Republic v. Samuel Gathuo Mwangi [2017] eKLR, the Court held that revisional jurisdiction under Section 362 of the Criminal Procedure Code applies only to proceedings before the subordinate court and not before the High Court, as once the latter court determines an appeal, it becomes functus officio. 14.It is noted that the application herein seeks to challenge the constitutionality of the mandatory life sentence prescribed for defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. He has cited the case of Edwin Wachira & 9 others, Criminal Petition No. 97 of 2021, 88 of 2021 and 57 of 2021 in which Mativo J. expressed that mandatory sentences are unconstitutional. 15.The Supreme Court in Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) held that the mandatory death sentence under Section 204 of the Penal Code was unconstitutional to the extent that it took away the discretion of the trial court while sentencing. The apex court then gave directions granting the trial court special jurisdiction to hear a party on resentencing, where an accused person had suffered the mandatory death sentence under Section 204 of the Penal Code. 16.The aforesaid Muruatetu decision reinforced the individual’s right to challenge any unconstitutional sentence by way of a Constitutional Petition regardless of the existence of a final determination of an appeal by the Petitioner. A challenge of a sentence by way of a Constitutional Petition constitutes a totally new cause of action founded on the Bill of Rights and which was not litigated or determined in the previous appeal. The court therefore has jurisdiction to hear and determine this Constitutional Petition. 17.Regarding the claim that the Petitioner was aged 15 years at the time of his arrest, I have perused the Charge Sheet, which indicates that he was an adult, and the Treatment Notes, Tetanus Toxoid Immunization Card, and P3 form, which indicate that the Petitioner was aged 20 years on 28th July 2011 when he was attended to. The Petitioner never raised the issue of age in his appeal, and since the records show that he was an adult at the time of his arrest, the said ground is baseless. 18.The case of Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) (Supra) decision, was unique to murder cases and subsequently the court clarified the position in Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) famously referred to as Muruatetu II. In Muruatetu II, the Supreme Court succinctly declared that the court’s decision in Muruatetu I did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. 19.In Republic v. Joshua Gichuki Mwangi & others (Petition E018 of 2023), the Supreme Court firmly upheld the constitutionality of mandatory minimum sentences under the Sexual Offences Act and reaffirmed that the trial courts have no discretion to impose a sentence below the prescribed minimum sentences prescribed by the statute. In making the said determination, the Supreme Court noted that the Legislature reserves the sovereign power to determine sentencing policy in a bid to deter grievous offences. 20.The position of the Supreme Court was buttressed further in the case of Republic v. Julius Kitsao Manyeso [2025] KESC 16 (KLR) where the apex court set aside the Court of Appeal’s decision to substitute life imprisonment with forty (40) years and reinstated the life imprisonment sentence that had been affirmed by the High Court. 21.In reaffirming the legality of the mandatory minimum sentences in Sexual Offences matters, the apex court held that the court lacks the legal authority to substitute statutory sentences within alternative sentences as this violates the doctrine of separation of powers. The Court, further emphasize that determining penal policy and setting mandatory minimum sentences was the province of Parliament and the Courts inference would be tantamount to usurpation of legislative power. 22.This court is bound by the principle of stare decisis. Since the highest court of the land has pronounced with finality that minimum mandatory sentences and indeterminate life sentences under the Sexual Offences Act do not offend the Constitution, we have has no option but to abide by the decision of the apex court. 23.For the reason that the life sentence is indeterminate, the provisions of Section 333 (2) of the Criminal Procedure Code do not apply. 24.For the foregoing reasons, the application dated 13th December 2023 is hereby dismissed. DATED, SIGNED, AND DELIVERED AT KAKAMEGA, THIS 31ST DAY OF JULY 2026.A. C. BETTJUDGEIn the presence of:Petitioner in personMs. Chala for the RespondentCourt Assistant: Polycap