Marionya v Director of Public Prosecutions (Criminal Revision E099 of 2024) [2025] KEHC 19348 (KLR) (13 November 2025) (Ruling) Neutral citation: [2025] KEHC 19348 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL REVISION E099 OF 2024 TW CHERERE, J NOVEMBER 13, 2025 BETWEEN KENNEDY BOSIRE MARIONYA ......................................................... APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT RULING 1. On 18th May 2021, Applicant Kennedy Bosire Marionya was convicted in Nyamira in Criminal Case No. 14 of 2016 and sentenced to serve a term of 15 years for the ofience of defilement contrary to section 8(1) as read with section (4) of the Sexual Offences Act. 2. The Applicant has moved this Court by a Notice of Motion dated 02nd July 2024 brought under Articles 22, 27, 50, 159 and 165 of the Constitution, sections 215, 216 and 354 of the Criminal Procedure Code, and section 26(2) of the Penal Code seeking review and reduction of the sentence imposed upon him. 3. The Applicant seeks review on the grounds that the sentence of fifteen years is harsh and excessive; that he is unwell and his condition is deteriorating; that he is remorseful and prays for leniency; and that he has no pending appeal. He urges the court to exercise discretion to reduce the sentence to a more lenient term. The Respondent urged the court to consider the law under which Applicant was charged. 4. I have considered the application in light of the supporting affidavit and section 8(4) of the Sexual Offences Act, which provides as follows: “ A person who commits an ofience of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19348/eng@2025-11-13 1
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5. The court has considered the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) (“Muruatetu 2”), where the Court categorically held that the decision declaring the mandatory death sentence unconstitutional applies only to murder cases under section 204 of the Penal Code, and not to other ofiences carrying mandatory sentences. 6. The Supreme Court stated: “ The decision of this Court in Muruatetu should not be understood to apply to other ofiences carrying mandatory sentences. Those other cases shall await appropriate determination by the High Court, the Court of Appeal, or by this Court in the future.” 7. Similarly, the Supreme Court in Republic v Joshua Gichuki Mwangi Petition No. E018 of 2023 [2024] KESC 42 (KLR) reaffirmed that trial courts have no discretion to impose a sentence below the statutory minimum set by Parliament. 8. Consequently, unless and until the mandatory minimum sentence under section 8(4) of the Sexual Offences Act is declared unconstitutional by the superior courts or amended by Parliament, this court remains bound by the statutory provision. 9. The sentence of fifteen (15) years’ imprisonment imposed on the Applicant is the minimum sentence provided by law. The trial court had no discretion to impose a lesser sentence, and similarly, this court lacks jurisdiction to revise the sentence to a term below the statutory minimum. The sentence cannot therefore be said to be excessive or unlawful. 10. The Applicant’s health concerns, while sympathetic, do not provide a legal basis for interfering with a lawful sentence. Such issues may be addressed administratively through the prison authorities and the relevant medical institutions. 11. In the result, I find no merit in the application for sentence review. The sentence imposed by the trial court was lawful and proper. 12. It is therefore hereby ordered: 1. The Notice of Motion dated 02nd July 2024 is hereby dismissed. 2. The sentence of fifteen (15) years’ imprisonment imposed in Nyamira Chief Magistrate’s Court Criminal Case No. 14 of 2016 shall remain in force. DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER, 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19348/eng@2025-11-13 2
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