https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12191

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CONSTITUTIONAL PETITION E006 OF 2025** **FREDERICK BUNDI NJAGI ........................................................................PETITIONER** **VERSUS** **REPUBLIC......................................................................................................RESPONDENT** **JUDGMENT** 1. Before the Court is a Petition dated 9/10/2025 seeking specific reliefs as follows: *“I.* ***Declaration*** *that the Petitioner's prolonged incarceration. without proper consideration of rehabilitative. proportionate, and non-custodial alternatives, has violated his fundamental rights under Articles 27, 28, 29(f), 47, 48, and 50 of the Constitution of Kenya, 2010.* *II.* ***A Declaration*** *that the sentencing and appellate processes in Kerugoya High Court Criminal Appeal o. 59 of 2017 failed to uphold constitutional principles of proportionality, dignity, fairness, and the right to the least severe punishment.* ***III. An Order of Judicial Review*** *quashing or varying the sentence imposed upon the Petitioner, with directions that the period already served in custody-exceeding ten years be deemed sufficient punishment under the law.* ***IV. An Order of Substitution.*** *reducing the Petitioner's sentence to a non-custodial measure. including probation, community service, or any other rehabilitative option consistent with the Sentencing Policy Guidelines (2016, revised), the Probation of Offenders Act, and the Community Service Orders Act.* ***V. An Order of Immediate*** *Relea* ***e*** *of the Petitioner from custody, on account of time already served, demonstrated rehabilitation, religious and moral transformation, and the absence of lawful justification for further incarceration.* ***VI. A Declaration*** *that the continued confinement of the Petitioner. despite his reformation and successful participation in spiritual and rehabilitative programmes. Constitutes cruel. inhuman, and degrading punishment in violation of Article 29(1) of the Constitution.* *VII. A Direction to the relevant State organs, including the Kenya Prisons Service, Probation and Aftercare Service, and the Community Service Orders Committee. To facilitate the Petitioner s reintegration into society, ensuring his dignity, safety, and meaningful rehabilitation upon release.* *VIII. Any further orders that this Honourable Court may deem just and expedient in the interests of justice, human dignity, fairness and the rule of law.* *IX. Cost of this Petition to be borne by the Respondent.”* 1. The factual basis for the reliefs is set out in the State of Facts in the Petition as follows: *“****STATEMENT OF FACTS*** *1. The Petitioner, Mr.* ***Fredrick Bundi*** *Njagi, is a Kenyan citizen who appears before this Honourable Court in person, without the benefit of legal representation. He has been in continuous custody for a period now exceeding ten (10) years, serving a custodial sentence imposed following criminal proceedings that were initially commenced before the Principal Magistrate's Court at Kerugoya.* *2. In the year 2015, the Petitioner was arrested and subsequently charged with an offence under the Sexual Offences act. He was tried, convicted, and sentenced to a substantial term of imprisonment.* *3. Being dissatisfied with both his conviction and sentence, the Petitioner exercised his right of appeal to the High Court at Kerugoya. His appeal was registered and heard as Kerugoya High Court Criminal Appeal No. 59 of 2017 - Fredrick Bundi Njagi v* *Republic.* *4. In 2017, the High Court dismissed the appeal against conviction and upheld the finding of guilt. The sentence, however, was left intact, without re-evaluation in light of the rehabilitative and proportionality principles recognised by law. The practical effect was to impose a lengthy custodial term approximating twenty (20) years.* *5. From the date of his arrest in 2015 until the filing of this Petition, the Petitioner has remained continuously incarcerated within a maximum-security custodial environment. He has, as of now, served more than ten (10) years in prison.* *6. Throughout this period of incarceration, the Petitioner has suffered both physically and mentally. He is presently unwell, ailing from conditions aggravated by long-term imprisonment and lack of adequate medical care. His health continues to deteriorate, and he stands before this Honourable Court not only as a prisoner but as a human being in need of mercy, dignity, and constitutional protection.* *7. At the time of sentencing and upon appeal, the courts did not consider the wider statutory and policy framework enacted by Parliament and adopted by the Judiciary to ensure fairness, proportionality, and rehabilitation in sentencing. These include the Probation of Offenders Act (Cap 64), the Community Service Orders Act No. 10 of 1998), and the Sentencing Policy Guidelines (2016, as revised).* *8. These instruments collectively emphasise that imprisonment is to be employed as a measure of last resort, reserved for the most serious cases, and that offenders should, wherever possible, be afforded the benefit of the least severe sentence available in law, particularly where rehabilitation and reintegration into society remain feasible.* *9. The omission to consider these rehabilitative and non-custodial alternatives in the Petitioner's case meant that his personal circumstances his age, health condition, character, and potential for reform were never properly weighed against the legal and policy provisions designed to secure humane and proportionate punishment.* *10. Consequently, the Petitioner has remained confined in a restrictive custodial regime for over a decade, notwithstanding the existence of lawful alternatives that would better serve the objectives of justice, rehabilitation, and social reintegration.* *11. The Petitioner therefore humbly prays that this Honourable Court recognises the constitutional and statutory safeguards that were overlooked in his case, and grants him the opportunity to serve any remaining portion of his sentence under a noncustodial framework, in a manner consistent with the Constitution's promise of fairness, proportionality, human dignity, and the right to life and health.”* 1. In Written submissions dated 17/11/2025 filed by the DPP, it is urged that sentence meted out on the applicant was properly convicted on the evidence and the sentence was in accordance with the law and gravity of the offence as follows: *“****Whether the period of Ten Years already served by Applicant/Petitioner should be deemed sufficient punishment.*** *We submit that the Petitioner/Applicant was taken through a fair trial and was found culpable.* *The custodial sentence imposed upon the Petitioner was commensurate to the offence; hence wa necessary to protect the public.* *III The length of the sentence indicative of the serious ne s the offence and the maximum [minimum] penalty for the crime allowed by law.* ***Whether the Applicant / Petitioner is of ill health.*** *Qj ue~* *We submit that the Applicant/Petitioner has not demonstrated such ill health Prison Facility are unable to tend to and/or tackle.* ***Whether the Petitioner/Applicant is Rehabilitated.*** *We submit the Petitioner/Applicant fail to furnish this Court with cogent skill [reasons] earned for the period in custody save for spiritual matters only.”* 1. The Petitioner’s Submissions dated 26/11/2025 cites caselaw authorities of *Francis Karioko Muruatetu* & *Another* v *Republic [2017) eKLR; Joseph Kaberia Kainga* & 11 *Others)' Attorney General [2016} eKLR; Ahamad Abolfathi Mohammed* & *Another v Republic [20J8} eKLR; Douglas Muthaura Ntoribi v Republic [2014} eKLR; Republic v Philip Mueke Mutunga* & *Other. [2019} eKLR: and Samuel Manyuru* v *Director of Public Prosecutions [2020} eKLR* for legal propositions against excessive punishment and need to align treatment with proportionality and human dignity and to prioritise non-custodial sentences where there has been rehabilitation of the offender, and concludes as follows: *“****E. Conclusion*** *The Petitioner, having served over ten year In maximum-security confinement despite demonstrable rehabilitation, moral transformation, and statutory alternatives, remains subjected to treatment incompatible with the Constitution. The failure to consider rehabilitative measure, proportionality, and his personal circumstances constitutes a serious violation of fundamental rights. In the interest of justice, fairness, human dignity, and constitutional supremacy, this Honourable Court is urged to grant the reliefs sought.* ***CONCLUSION*** *In light of the foregoing Submissions, it is evident that the Petitioner, Mr. Fredrick Bundi Njagi has demonstrated a clear and substantive violation of his fundamental constitutional rights, including the rights to equality, human dignity. freedom from cruel and degrading treatment, fair administrative action, fair trial, and access to justice. The prolonged incarceration without consideration of rehabilitative and non-custodial alternatives, despite the Petitioner’s demonstrated moral, educational, and spiritual rehabilitation, constitutes a disproportionate and Constitutional infringement on his rights. The Petitioner has therefore established a strong entitlement to the reliefs sought, which are necessary to vindicate his constitutional protections and restore the principles of justice, fairness, and human dignity.”* **Determination** 1. The Court notes that the applicants appeal on the merits to this court was dismissed by the Court (Gitari J.) by a judgment dated 9/4/2021as follows: *“17. The investigation conducted by the prosecution was sufficient in he circumstances of this case where the offence was revealed after five months. A visit to the scene would not have yielded anything would not have added any value to the case. The records shows that the defence of the appellant was considered. Having analysed the evidence and evaluated, it is my finding is that the charge against the appellant was proved beyond any reasonable doubts.* *l8. On sentencing, the trial magistrate passed the bare minimum provided under the section. It is trite that sentencing is the discretion of the trial magistrate. In this case, the trial magistrate exercised her discretion in sentencing fairly, considering all the circumstances and the seriousness of the charge. I find no reason to interfere with the sentence, it was lawful and not excessive.* *19.1n conclusion I find that this appeal is without merits and is dismissed.* *Signed by:* *HON. LADY JUSTICE L.W GITARI* *JUDGE* *9/4/2021”* 1. From the grounds of the petition and the reliefs sought in the Petition, it is clear that there is no attack on the conviction by the Court or on appeal. The Petition is calculated to a finding that the sentence meted out on the offender in this case is unconstitutional for offending the provisions of the Constitution on equal protection of the law, among others, as prayed in Prayer (i) of the Petition. 2. Upon considering the Petition, the Court is unable to grant the reliefs. The Petition for resentencing must be declined for several reasons as follows. The Court has no jurisdiction to reduced the mandatory minimum sentences provided in the Sexual Offences Act as guided by the Supreme Court in the trilogy of cases of ***Mwangi*** (Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)), ***Manyeso*** (Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)) and ***Ayako*** (Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment)). 3. In ***Mwangi*** case, the Supreme Court is categorical and it required an offender whose mandatory imprisonment term for twenty (20) years had been reduced by the Court of Appeal to fifteen (15) years to be recalled to complete his mandatory sentence upon ruling that the revision of sentence by the Court of Appeal was unlawful, as follows: *“****iii. Whether minimum sentences as prescribed in the***[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)***are unconstitutional and (iv) whether courts have discretion to impose sentences below minimum those prescribed by the***[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)***.*** *64.Returning to the issue of the constitutionality or otherwise of minimum sentences under the*[*Sexual Offences Act*](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)*and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the*[*Sexual Offences Act*](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)*it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.* *65.The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03)*before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the*[*Sexual Offences Act*](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)*unconstitutional, failing to refer even to the particular section 8 that would have been relevant to the respondent’s case.* *66.We also note that the Court of Appeal concluded its decision in this present matter by reducing the respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court's decision is called into question by this omission as sentencing is a matter of fact unless an appellate court is dealing with a blatantly illegal sentence which was not the case in the present matter.* *67.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.* *68.This is why, even in the*[*Muruatetu*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)*case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of*[*Trusted Society of Human Rights v Attorney-General and others*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2480)*, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:* *“Although the Kenyan*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03)*contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03)*, regarding the necessity of separating the Governmental functions. the*[*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03)*consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”* *We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.* ***G. Conclusion*** *69.Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on October 7, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the respondent and affirmed by the first appellate court was lawful and remains lawful as long as section 8 of the*[*Sexual Offences Act*](https://new.kenyalaw.org/akn/ke/act/2006/3/eng%402024-04-26)*remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.* ***H. Final Orders*** ***70.We take cognizance of the fact that upon delivery of the judgment of the Court of Appeal reducing the respondent sentence from 20 years to 15 years, the respondent had since been released from prison. The consequent effect of our decision herein of setting aside the judgment of the Court of Appeal would be reinstating the initial sentence of 20 years and it is upon the relevant organs of State to abide by our decision.”*** 1. It is not clear whether the Petitioner appealed the decision of the High Court (Gitari, J.). However, the Court has no authority to supervise itself and being an order of a court (differently constituted) of equal jurisdiction, this court has no supervisory jurisdiction under Article 165 (6) of the Constitution and the judicial review orders sought in the Petition cannot be granted against the judgment of Gitari, J. of 9/4/2021. 2. The decision impugned having already been unsuccessfully challenged on appeal to this Court in Kerugoya HCCRA No. 59 of 2017, the Court cannot properly arrive at a different decision on the matter of the sentence, as the Court is *functus officio.* 3. The Court dos not decide that it can revise a mandatory minimum imprisonment sentence on grounds of ill-health of the offender, and that notwithstanding, even if it could for reasons of health consider the release of an offender for the period already served , it has not been shown that by any report from the Prison Authorities that it has no facilities capable of dealing with or managing the medical condition that the applicant alleges to suffer. 4. If it an issue of re-sentencing on the precedent of ***Muruatetu I (****Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)* [2017] KESC 2 (KLR) (*Muruatetu decision*) , it was clarified in ***Muruatetu II*** (*Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae)* [2021] KESC 31 (KLR) directions (*Muruatetu Direction)*) that the basis for resentencing was for capital sentences in the offence of Murder contrary to section 203 as read with 2024 and not other capital or mandatory or minimum sentences in the Penal Code or Sexual Offences Act. There is, accordingly, no basis for resentencing sought in this matter. ***Conclusion*** 1. In conclusion, the Petition does not challenge the conviction for teh offence of defilement contrary to section 8 (1) and (3) of the Sexual Offenders Act. The offence carries a mandatory minimum sentence of imprisonment for twenty (20) years. 2. There is no discretion in sentencing below the minimum sentence provided for under the law. The arguments as regards, the proportionality of sentence, the preference and priority of noncustodial sentences where the offender is shown to have reformed would apply in cases where no minimum sentences are prescribed. Where a sentence is prescribed in the given statute as a minimum, the Court as guided by the Supreme Court decisions referred to above, is required to defer to the legislative wisdom of Parliament in fixing the minimum sentences. 3. There has not been demonstrated by the Petitioner in relying on medical grounds that the prison facilities are unable to offer the necessary medical treatment necessary for any ailment that the applicant is shown to suffer. 4. Apart for urging the bare allegation that *“I am now of ill health and further confinement only worsens my condition without serving any rehabilitative purpose”,* no medical reports treatment notes and most importantly report from the Prison Authorities in indicating their inability to manage the medical requirements of the particular offender have been produced. 5. The outcome of the Petition is governed by the minimum mandatory provisions on the sentence for defilement contrary to section 8(1) and (3) of the Sexual Offences Act, the guidance of the Supreme Court on the possibility of resentencing orders in defilement cases and lack of any supportive evidence before the Court as regards his medical condition. The Petition is declined. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Petitioner’s Petition herein dated 9th October 2025 is without merit and it is dismissed. 2. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mwangi and Mr. Mamba for the DPP. Applicant in person.