https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8931

Gituamba v Republic (Criminal Miscellaneous Application E120 of 2023) [2026] KEHC 8931 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8931 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Miscellaneous Application E120 of 2023 PN Gichohi, J June 23, 2026 IN THE MATTER OF PETITION NO. 97 OF 2021 AT MOMBASA AND IN THE MATTER OF ARTICLE 2 (1) , 3 (1), 10(2) ,19, 22(1) , 25 (A) , 27 (1), (2) (4) , 28, 29, (A) ,(F) , 50, 159 (2) (A) , 165 (3), (B) (D) OF THE CONSTITUTION AND IN THE MATTER OF HIGH COURT OF KENYA CR. APPEAL N0.96 OF 2011 AT NAKURU AND IN THE MATTER OF CRIMINAL CASE N0. 83 OF 2010 AT NAKURU LAW COURTS Between Samwel Kihara Gituamba Applicant and Republic Respondent Ruling 1.By an undated application filed on 26th of September 2023, the Applicant seeks substitution of the life sentence he is serving citing the Petition No. 97 of 2021 at Mombasa that mandatory life sentence is unconstitutional. 2.The gravamen of the application is that he was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006, where he was convicted and sentenced to life imprisonment in Criminal Case No. 83 of 2010 at Nakuru Law Courts. 3.He urged this court to consider the unconditionality of the mandatory life sentence imposed herein and allow his application by issuing different sentence, taking into account mitigation and the period he has spent in custody. 4.In her oral response, Ms Mwaura from the office of the Director of Public Prosecution, took the court through the Applicant’s journey before filing this case and therefore submitted that this court lacks jurisdiction to handle this application. She argued that the 3-Judge Bence in the Appellant’s Appeal No. 9 of 2013, found the sentence lawful and hence dismissed the appeal . 5.Further , she argued that the Supreme Court in Muruatetu case confirmed the mandatory nature of the sentence under the Sexual offences Act. She therefore argued that this application lacks merit and the Applicant is only forum shopping. 6.In response, the Applicant stated that having heard what the Respondent had submitted, he urged the court to allow his application by granting him a determinate sentence so that he can finally go back to his family. Determination 7.After hearing both parties , this court accessed the courts’ records. Indeed, the accused was charged before the trial court (H.O. Barasa SRM) in Nakuru Criminal Case No. 83 of 20210, with the offence defilement contrary to Section 8 (1) as rad with Section (2) of the Sexual Offences Act No. 3 of 2006 . His appeal to the High Court in Nakuru CR. Appeal No.96 of 2021 on both conviction and the sentence of life imprisonment was dismissed by M. J. Anyara Emukule J on 8th June 2012. 8.Dissatisfied , he proceeded to the Court of Appeal in Criminal Appeal No. 9 of 2013. On 26th July 2024, the three Judges of Appeal ( F .Ochieng, G.W.Ngenye- Macharia and W. Korir ) dismissed the appeal in its entirety while holding:-“As recent as 12th July 2024, the Supreme Court in R vs Mwangi ; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae ) Petition E018 OF 2023) (2024) KESC 34(KLR) 12TH JULY 2024) Judgment) affirmed mandatory sentences under the Sexual Offences Act. The Court held that imposing the mandatory minimum sentence s does not , of itself, deprive sentencing court power to exercise judicial discretion. In the present case, the appellant at first appealed did not challenge the constitutionality of the sentence meted by the trial court. Although in mitigation he prayed for leniency since he is the one who takes care of his old mother, our hands are tied by the law. We arrive at the inescapable conclusion that the live sentence imposed was lawful, and we thus uphold it.” 9.In R vs Mwangi (supra), the Apex Court was dealing with the following issues :-i.Whether mandatory minimum sentences as prescribed in the Sexual Offences Act are unconstitutional; and,ii.Whether courts have discretion to impose sentences below the minimum mandatory sentences as prescribed in the Sexual Offences Act. 10.In so doing, the Supreme Court held:-“ 58.The amici ...submitted, and we agree, that sterner sentences ensure that prejudicial myths and stereotypes no longer culminate in lenient sentences that do not reflect the gravity of sexual offences. They cite instances in which the courts have been influenced by myths that; attempted rape is not a serious offence; the absence of separate physical injury renders the crime less serious; and, the alleged relationship between the perpetrator and the victim diminishes the perpetrator’s culpability. …, 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 remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.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.… The Respondent, Joshua Gichuki Mwangi, should complete his 20-year sentence from the date of imposition by the trial court.” 11.The Applicant’s argument is that since the life imprisonment was declared unconstitutional, this court should substitute his sentence of life imprisonment with another lenient sentence. 12.However, this court notes that in the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), the Supreme Court affirmed that legislative authority is vested in Parliament, which defines sentences and the Courts' roles are confined to interpreting and adjudicating the constitutionality of a statute, not rectifying or amending it. 13.The Supreme Court had previously recommended that the Attorney General and Parliament develop legislation to define 'what constitutes a life sentence,' suggesting that this function falls within the realm of the Legislature, not the Judiciary and therefore, by defining a life imprisonment to be 40 years, the Court of Appeal usurped legislative powers. 14.The Supreme Court emphasised that defining the parameters of sentences, including life imprisonment, is a function of Parliament, not the Judiciary, and that such a decision by the Court of Appeal arbitrarily created law without legislative involvement or public participation. 15.This means that the indefinite nature of a life sentence under Section 8 (2) of the Sexual Offenses Act cannot be redefined to include a specific end date reason being that for such a change to occur, Parliament would need to amend the law, as explicitly stated by the Supreme Court. 16.In light of the foregoing, this court lacks jurisdiction to interfere with the mandatory sentence herein so as to issue any other form of sentence as sought by the Applicant. Consequently, the application herein is dismissed. DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JUNE, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 23RD DAY OF JUNE, 2026.………………………DR. JOSEPH SERGONJUDGE