https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7909

Kisule v Republic (Criminal Revision E110 of 2024) [2026] KEHC 7909 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7909 (KLR) Republic of Kenya In the High Court at Machakos Criminal Revision E110 of 2024 AN Ongeri, J June 4, 2026 Between Stephen Musyoka Kisule Appellant and Republic Respondent (Appeal arising form Criminal Case Sexual Offence No SO E72 of 2019 Mavoko Law Courts) Judgment 1.The petitioner was convicted with defilement and sentenced to 20 years imprisonment on 13/6/2013 in Machakos SO Case Number 123 of 2012. 2.He appealed to the Court of Appeal in Machakos High Court Appeal No. 98 of 2013 and his appeal was dismissed. 3.The petitioner filed a revision application which was undated. 4.The revision application was dismissed on 14/5/2025. 5.The appellant has now filed the petition dated 17/7/2025 challenging the constitutionality of his sentence. 6.The parties filed written submissions as follows; the applicant submitted that he was convicted of defilement under Section 8(1) as read with section 8(3) of Kenya’s Sexual Offences Act and sentenced to 20 years by the Makueni Law Courts in Criminal Case No. 123 of 2017, and his first appeal was dismissed by the High Court in Criminal Appeal No. 98 of 2013. 7.He seeks resentencing or revision, claiming the trial court imposed a mandatory minimum sentence without judicial discretion, which recent Kenyan jurisprudence (e.g., Machakos High Court in Phillip Mueke Maingi, Mombasa in Edwin Wachira, and Kibera in Joseph Wambua Bahati) has declared unconstitutional. 8.The applicant states he is remorseful, a first offender, and has served nearly 13 years since his arrest on 29th March 2012, now aged 42, having completed multiple rehabilitation programmes (behaviour change, bible studies, prisoner’s journey) with a letter from Machakos Main Prison confirming good conduct and rehabilitation. 9.He asks the court to consider time served as sufficient punishment, or impose a non-custodial or lesser term, and requests that the 14 months spent in remand custody be factored into his sentence under section 333(2) of the Criminal Procedure Code, which the trial court failed to do. 10.He further submits that he was arrested on 28 March 2012 and sentenced on 13 June 2013, meaning he served about one year and two months in custody during trial, and cites the proviso to section 333(2) requiring the sentence to account for pre-sentence custody. 11.He quotes Court of Appeal decisions in Ahamad Abolifath Mohammed & Another v Republic [2018] eKLR (remand period must proportionately reduce sentence, not merely be acknowledged) and Bethwel Wilson Kibor v Republic (nine-to-ten-year pre-sentence detention should be considered), plus the Judiciary Sentencing Policy Guidelines stating failure to account for pre-trial detention leads to disproportionate punishment. 12.The applicant prays that the court factor the remand period into his 20-year sentence, hold a resentencing hearing, reduce his term, or set him at liberty based on time served. 13.The respondent opposes the application, arguing that the High Court lacks jurisdiction because the first appeal was heard and dismissed by a court of concurrent jurisdiction, which fully reviewed the evidence and upheld the conviction and sentence. 14.The respondent contends the applicant’s reliance on Phillip Mueke Maingi v Republic [2023] eKLR and Edwin Wachira is misguided as those decisions are merely persuasive, not binding, and the Supreme Court in Republic v Joshua Gichuki Mwangi has since clarified that minimum mandatory sentences under the Sexual Offences Act remain constitutional and binding unless the Supreme Court is properly moved. 15.The respondent submits the applicant has not exhausted all appeal avenues, and his claims of violated rights under articles 25, 28, and 50(2)(p) are unsubstantiated: no proof of torture, inhuman treatment, or dignity violations, and the prescribed punishment for his offence has not changed. 16.The respondent therefore prays that the application be dismissed in its entirety for lacking merit. 17.The issues for determination in this petition are as follows;i.Whether the High Court has jurisdiction to entertain a petition challenging a sentence after an appeal has been dismissed by a court of concurrent or superior jurisdiction;ii.Whether the mandatory minimum sentences under the Sexual Offences Act are unconstitutional in light of evolving jurisprudence; andiii.Whether the trial court's failure to take into account the petitioner's pre-sentence remand custody under section 333(2) of the Criminal Procedure Code invalidates the sentence or entitles him to a reduction. 18.On the question of jurisdiction, once the High Court determined and dismissed the petitioner's first appeal, it became functus officio regarding the merits of the conviction and sentence. A constitutional petition cannot be used as a disguised second appeal or a mechanism to bypass the hierarchical court structure. 19.Regarding the constitutionality of the 20-year mandatory minimum sentence for defilement under Section 8 of the Sexual Offences Act, the legal landscape has been clarified by higher courts. 20.While individual High Court decisions like Phillip Mueke Maingi v Republic (supra) initially declared these minimums unconstitutional, subsequent superior jurisprudence, aligning with the persuasive guidance of the Court of Appeal, has reaffirmed that mandatory minimums under the Sexual Offences Act remain valid statutory provisions intended by Parliament to punish grave offenses against children unless specifically nullified by a binding apex court ruling. 21.The petitioner's commendable rehabilitation milestones, certificate courses, and reformed character while serving his 20-year sentence at Machakos Main Prison are administrative matters for the Power of Mercy Advisory Committee under article 133 of the Constitution rather than a basis for this court to disturb a statutory minimum sentence that has already been upheld on appeal. 22.However, the petitioner's claim regarding the trial court's failure to factor in his pre-sentence remand custody raises a distinct statutory right under section 333(2) of the Criminal Procedure Code. 23.The record establishes that the petitioner was arrested on 28th March 2012 and sentenced on 13th June 2013, spending approximately 14 months in remand. 24.The Supreme Court of Kenya in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and subsequent Court of Appeal decisions such as Ahamad Abolifath Mohammed & Another v Republic (supra) have robustly held that the provisions of section 333(2) are mandatory. 25."Taking into account" the pre-sentence detention period cannot be a mere academic exercise or a token mention; it requires the court to deduct that specific duration directly from the final sentence imposed so that the offender does not serve a sentence longer than the law intended. 26.The failure of the trial court to deduct this period constitutes a clear legal error that can be corrected in the interest of justice. 27.Consequently, while this court rejects the prayer to set the petitioner at liberty on account of time served or to substitute the sentence with a non-custodial term, the petition is allowed solely to the extent that the 14 months spent in remand custody are ordered to be deducted from his 20-year sentence. 28.The petitioner's sentence shall therefore be computed as starting from the date of his conviction on 13th June 2013, but shortened by the exact 14 months he served in pre-trial remand. 29.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEIn the presence of;The Applicant present at Machakos Main Prison.C Mangare for State.Chrispine - Court Assistant.