https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10967

VKN v Republic (Criminal Application E049 of 2024) [2026] KEHC 10967 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10967 (KLR) Republic of Kenya In the High Court at Kericho Criminal Application E049 of 2024 JC Mutai, J July 15, 2026 Between VKN Applicant and Republic Respondent Ruling 1.The Applicant has filed an undated Application but received at the Court registry on 8th January 2023 seeking a review of sentence in Criminal Case No. E027 of 2021 at Kericho, in which he was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the sexual offences Act No. 3 of 2006 where he was sentenced to serve 10 years imprisonment. The Applicant grounded his application for review that; he did not appeal the sentence, his application is a sentence rehearing only. 2.He stated that this Court had the jurisdiction under Article 165(3)(b) of the Constitution and relied on the case of Petition No. E017 of 2021 Philip Mueke Maingi & 5 others vs. DPP at Machakos which declared that the court’s discretion in sentencing should not be fettered by mandatory minimum sentencing provisions. 3.He further states that the Court stated that those who were convicted of sexual offences and those whose sentences were passed on the basis of the trial courts had no discretion but to impose the said mandatory minimum sentences are at liberty to petition the High Court for mitigation and sentencing. 4.He expressed remorse and asked the Court to give him a second chance to go and take care of his suffering child and the mother who were complainants in the case and that they are in good terms and the child needs his presence as a father and that the child is innocent. 5.He prayed that this Court finds that the period he has already served to be sufficient and invoked Article 50(2)(p)(q). 6.The state objected to the Application on the grounds that the sentence was lawful, and if the accused was dissatisfied he ought to have appealed to a higher Court. The Application was an abuse of the Court process and should be dismissed. Analysis and determination 7.The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006 whose particulars are that on the 18th day of January 2021 at around 1400hrs at Borborwet sub-location Kipkayan location kericho west sub-county within Kericho County intentionally caused his penis to penetrate the vagina of ICN a child of 16 years. After full trial he was found guilty of the offence and convicted to serve 10 years imprisonment. The offence carries a mandatory sentence. 8.The Applicant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to ten (10) years' imprisonment. The sentence imposed is the minimum sentence prescribed by statute for the offence. There is nothing on the record to suggest that the sentence was unlawful or that the trial court acted outside its jurisdiction. 9.The Applicant's case rests substantially on Philip Mueke Maingi & 5 Others v Director of Public Prosecutions (Petition E017 of 2021) [2022] KEHC 13118 (KLR) and Edwin Wachira & 9 Others v Republic, Petition No. 97 of 2021 (Mombasa), both of which held that mandatory minimum sentences under the Sexual Offences Act offended Article 28 of the Constitution and were amenable to resentencing. That position must now be read in light of subsequent, binding authority. The Supreme Court's directions in Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) confined the reasoning in Muruatetu I to the mandatory death sentence prescribed under Section 204 of the Penal Code for murder, and expressly cautioned lower courts against extending it to other mandatory or minimum sentencing provisions. 10.More decisively, the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) — a case arising, as here, from a conviction under Section 8(2) of the Sexual Offences Act — set aside the Court of Appeal's substitution of the mandatory life sentence with a fixed term, holding that such judicial substitution of mandatory sentences is a usurpation of legislative authority and offends the doctrine of separation of powers. Applying this, the High Court in Mwangangi (supra) held explicitly that the holdings in Maingi and Wachira are inapplicable, and that a sentence of life imprisonment imposed under Section 8(2) of the Sexual Offences Act "remains the only legal sentence" available for that offence. I respectfully adopt that reasoning. 11.I have considered the mitigating circumstances advanced by the Applicant, including his remorse, his assertion that he has reconciled with the complainants and his desire to resume parental responsibilities. Those factors are not insignificant. However, the offence for which the Applicant was convicted is a serious offence committed against a child. Sexual offences involving children implicate not only the rights of the individual victim but also the wider public interest in protecting children from sexual abuse. Consequently, personal reconciliation between the offender and the complainant's family cannot, of itself, diminish the gravity of the offence or justify interference with a lawful sentence.The sentence imposed on the Applicant was, and remains, the lawful and only sentence prescribed for the offence, and this Court has no power to interfere with it. 12.Tthe Applicant has not demonstrated that the sentence was illegal, irregular or manifestly excessive in the circumstances. The fact that he is remorseful and has served part of the sentence does not, without more, constitute sufficient ground for this Court to interfere with a sentence that is expressly prescribed by law. 13.For the foregoing reasons, I find and hold as follows:Republic v Manyeso [2025] KESC 16 (KLR);The Application fails on the merits, the sentence imposed under Section 8(4) of the Sexual Offences Act being the lawful and only sentence prescribed for the offence, per DELIVERED AT KERICHO ON 15TH JULY 2026CHELANGAT MUTAIJUDGE15/7/2026In the presence ofMs. Loice Osoro for the StateVKN - Applicant