https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8999

Nganga v Republic (Petition E037 of 2024) [2026] KEHC 8999 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 8999 (KLR) Republic of Kenya In the High Court at Kiambu Petition E037 of 2024 A Mshila, J June 26, 2026 Between John Ndachu Nganga Petitioner and Republic Respondent Judgment 1.This is an application for sentence review through a Constitutional Petition in which the Petitioner seeks this Court to grant him another chance in life. The Petitioner was tried and convicted on 30TH December, 2014 before the Githunguri Senior Principal Magistrates Court, Criminal Case No.820 of 2012. 2.The Petitioner was charged with the offence of Defilement contrary to Section 8(2) of the Sexual Offences Act with an Alternative Charge of Committing an Indecent Act with a child contrary to Section 11(1) of Sexual Offences Act. He was convicted on the main Charge and sentenced to suffer a life sentence on 30/12/2014. Dissatisfied with both the conviction and the sentence the Petitioner proffered appeals vide High Court Criminal Appeal No. 18 of 2015 and Court of Appeal Criminal Case No.68 of 2021. Both appeals were disallowed and both appellate Courts upheld the trial court’s sentence of life imprisonment. 3.The Petitioner has now filed this instant Petition stating that life sentence was unconstitutional as it does not respect or protect the inherent dignity of a person contrary to Article 28 of the Constitution. A life sentence inflicts psychological torture contrary to Article 29(d) of the Constitution. 4.The parties were directed to canvas the Petition by way of filing and exchanging written submissions. Petitioner’s Submissions 5.The Petitioner submits that this court should evaluate and analyze the matter a fresh and order for the appropriate remedy for the Petitioner. It was also submitted that sentencing is a discretion of the court as such the sentence of life imprisonment requires reconsideration as it is excessive, inappropriate and fails to adequately consider the mitigation factors and circumstances of the case. Reliance was placed in the case of Arthur Muya Muriuki vs Republic (2015) eKLR. The Petitioner submits that there is development in jurisprudence concerning the treatment of prisoners requiring prisoners to undergo rehabilitation rather than condemnation. Reliance was placed in the case of Vinter & others vs the UK ( application nos. 66069/09, 130/10 and 3896/10). Respondent’s Submissions 6.The Respondent did not file any written submissions. Issues For Determination 7.Upon reading the Petition and the written submissions the sole issue framed for determination is whether this Court should review the Petitioner’s sentence of life imprisonment. Analysis 8.The applicable law is found under Article 165(3) of the Constitution which gives this Court the jurisdiction to determine cases where the rights and fundamental freedoms of citizens under the Bill of Rights have been violated. This jurisdiction in respect of resentencing is demonstrated in prevailing jurisprudence that the High Court may fix a definite period of imprisonment where a person has been imprisoned for life or the law prescribes a life sentence. The Petitioner before approaching this Court must also have exhausted all the appellate processes; The Petitioner submitted that his appeals in the High Court Nairobi (High Court Criminal Appeal No. 18 of 2015) and the Court of Appeal sitting in Nairobi (Criminal Case No.61 of 2021) were found to have no merit and were both dismissed; the Petition is therefore rightly before this Court. 9.The appropriate sentence depends on the facts and the circumstances of the case. The Judiciary Sentencing Policy Guidelines lists the relevant factors in sentencing at page 15 paragraph 4.1 including the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the Applicant to inflict harm. 10.In the instant case the facts are very straight forward, the evidence of PW2 the mother of the child was that she sent the complainant to fetch milk at the Petitioners home; when the complainant took too long to return home she went to the Petitioners house to look for her; the Petitioner emerged from his son’s house with the complainant; she enquired what he was doing there with her daughter and upon not getting a satisfactory answer from the Petitioner she then interrogated her daughter who told her she had been sexually assaulted by the Petitioner. The incident was reported at Githunguri Police Station. The prosecution adduced evidence of sexual assault which was corroborated by PW3 Sabina Njeri a Clinical Officer who conducted a medical examination on the child and produced a P3Form (PExb.2) in support. The Petitioner was apprehended, charged convicted and sentenced to life imprisonment; and the two appellate courts were satisfied that the perpetrator was properly identified and that the prosecution proved the key ingredients of the offence to the required standard of proof and this sealed his fate; 11.The circumstances of this case have been considered. The Petitioner submitted that he was remorseful and that he had been rehabilitated during this period of incarceration. He also relied on and made reference to the emerging jurisprudence. The record indicates that he was sentenced to life because that is the mandatory minimum sentence provided by the law. Life imprisonment should not mean the natural life of a convict. Such an indefinite sentence contravenes the right to human dignity and the right not to be subjected to inhuman and degrading treatment. 12.The imposition of an indeterminate life sentence, denies a convict the opportunity to be heard in mitigation and also denies them the benefit of parole whilst those facing lesser sentences are allowed to be heard in mitigation and are admitted to parole. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. 13.For those reasons this Court is satisfied that the Petition has merit. Findings And Determination 14.In light of the above reasoning this Court makes the following findings and determinations:-i.This Court finds the Petition has merit and it is hereby allowed.ii.The Petitioner’s life sentence is found to be unconstitutional and it is hereby reviewed and substituted with a definite custodial sentence for a term of Thirty- Five (35) years. The sentence period to be calculated from the date of conviction by the trial court sitting in Githunguri on 12/03/2013 (subject to confirmation)Orders Accordingly. DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 26TH DAY OF JUNE, 2026.A. MSHILAJUDGEIn the presence of;Sanja /Trizah – Court AssistantsGacharia - for the StatePetitioner – present in person from Kamiti Maximum PrisonLanguage - Kiswahili