Esikuku v Republic (Criminal Miscellaneous Application E130 of 2024) [2025] KEHC 14342 (KLR) (17 July 2025) (Ruling) Neutral citation: [2025] KEHC 14342 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL MISCELLANEOUS APPLICATION E130 OF 2024 NIO ADAGI, J JULY 17, 2025 BETWEEN MICHAEL NADIO ESIKUKU ................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant Michael Nadio Esikuku seeks a review of his sentence. He was convicted for the ofience of defilement contrary to Section 8(1) as read with Section (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years imprisonment. 2. The Applicant being dissatisfied with the conviction and sentence, filed a first Appeal to the High Court at Machakos in Criminal Appeal No. E019 of 2021. The high court being a court of first appeal, evaluated the evidence and thereafter dismissed the appeal on 6th June 2022 in its entirety as the said appeal lacked merit. 3. The Applicant did not file a 2nd Appeal at the Court of the Appeal in the matter and is now back seeking further review of his sentence in the instant application. 4. The Applicant is yet to exhausted his right of appeal in the Court of Appeal. The Applicant has based his application on the case of Philip Maingi & Another vs DPP & Anor (Petition E017 of 2021) where the High Court held: “ ...to the extent that the Sexual Offences Act prescribes minimum mandatory sentences, to impose such sentences fall foul of Article 28 of the Constitution” 5. The Supreme Court of Kenya has in 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) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14342/eng@2025-07-17 1
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(Judgment) pronounced itself that the minimal mandatory sentences in the Sexual Offences Act are constitutional and courts should adhere to the same. 6. The Applicant cannot come back to this court for another review because this court is functus oficio. If he has any grievances, he can only move the Court of Appeal. For the above reason’s and following the decision in the above cited Supreme decision, the application for review is unmerited and declined. 7. Orders accordingly. File closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH JULY 2025 In the presence of: In person...................for Applicant Ms. Agatha..................for Respondent Milly.......................Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14342/eng@2025-07-17 2
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