https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9031

Nakaya v Republic (Criminal Miscellaneous Application E034 of 2025) [2026] KEHC 9031 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 9031 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Miscellaneous Application E034 of 2025 LN Mutende, J June 22, 2026 Between Thomas Zekekia Nakaya Petitioner and Republic Respondent Ruling 1.Thomas Zekekia Nakaya, the Applicant, appointed the court through an undated Notice of Motion seeking a declaration by the court that he has reformed, he is rehabilitated and now ready for re-integration back to the society. And, that the court awarded a wrong sentence of 30 years imprisonment instead of 20 years according to the law. 2.The application is premised on grounds that he was sentenced in 2015 for the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. SO 1769 of 2015 and the appeal he preferred was withdrawn. That he has served ten (10) years imprisonment and has taken advantage of rehabilitation programs offered in prison. 3.That the Constitution, Article 50(2)(p)(q) provides that an Applicant has a right to benefit from the least severe sentence and hence his sentence be reviewed and the court has power to hear, determine infringements of fundamental rights and award remedies. 4.No response was filed by the Respondent. 5.Submissions were filed by the Applicant which I have put into consideration. 6.Generally, the submissions in that regard are mitigative in natures where the Applicant States that the seeks a sentence that will appreciate the aim of sentencing where rehabilitation is paramount as altered by his testimonies. And, that after being aggravated and dissatisfied by the High Court decision, he lodged an appeal to the Court of Appeal which heard and dismissed it. 7.There is lack of clarity whether or not the Applicant filed an appeal or not. But what is before court is a Miscellaneous Application. Article 50(2)(p) & (q) of the Constitution provides thus:Every accused person has the right to a fair trial which includes the right-(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 8.An Accused is indeed guaranteed to have the least severe punishment taking into account fair trial. And it is an Accused person’s right to seek either review or appeal the decision of the trial court if dissatisfied with the outcome. This is in the alternative. The Applicant or Appellant makes a choice. 9.In the instant application the Applicant seeks to challenge severity of the sentence. Section 8(3) of the Sexual Offences Act provides thus;A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 10.The victim was a child aged fourteen(14) years. The Applicant seeks an order that in effect will alter the sentence after serving ten (10) years, being part of it. He has not alleged that the sentence was illegal, what he states is tantamount to the sentence being harsh or extensive. The miscellaneous application filed does not address the question severity of the sentence. This should have been challenged through an appeal but not a miscellaneous application. 11.The upshot of the above is that the application lacks merit. Accordingly, it is dismissed in its entirety. 12.It is ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.L.N. MUTENDEJUDGE