Ogendo v Republic (Revision Case E087 of 2025) [2025] KEHC 19458 (KLR) (14 November 2025) (Ruling) Neutral citation: [2025] KEHC 19458 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY REVISION CASE E087 OF 2025 PJO OTIENO, J NOVEMBER 14, 2025 BETWEEN JOSEPH ODONGO OGENDO ............................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The lower court file has been placed before this Court pursuant to a Notice of Motion filed on 17/6/2025. Through the said application, the Applicant seeks leave of this Court to institute a Constitutional Petition challenging the constitutionality of the mandatory sentences prescribed under the Sexual Offences Act, on the ground, inter alia, that such sentences are discriminatory. 2. The Applicant further prays that the sentence of twenty (20) years’ imprisonment imposed upon him be set aside and substituted with what he describes as a punitive form of punishment. 3. The Court notes that, although framed as an application for leave to file a Constitutional Petition, the substance of the application amounts to a request for revision of the sentence imposed by the trial court. Such an application properly falls within the ambit of Sections 362 and 364 of the Criminal Procedure Code, which grant the High Court supervisory jurisdiction over subordinate courts in criminal proceedings. 4. Upon a careful perusal of the record of the trial court, it is evident that the Applicant was charged with the ofience of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that the Applicant unlawfully defiled a child aged thirteen (13) years. Under Section 8(3) of the Act, the prescribed sentence for defilement of a child aged between twelve (12) and fifteen (15) years is imprisonment for a term of not less than twenty (20) years. 5. The sentences under the Sexual Offences Act are couched in mandatory terms. The Applicant contends that this legislative prescription is unconstitutional. However, the Supreme Court, in R v Evans https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19458/eng@2025-11-14 1
page 1 of 2
Nyamari Ayako (Petition No. E002 of 2024) [2025] KESC 20 (KLR), reafirmed its earlier decision in Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023) [2024] KESC 34 (KLR), holding that the mandatory minimum sentences under the Sexual Offences Act are not unconstitutional. The Court further held that trial courts lack discretion to impose sentences below the statutory minimum provided for sexual ofiences. This Court is bound by that pronouncement. 6. As regards the prayer for leave to file a Constitutional Petition, the Court finds that no such leave is necessary. Article 22 of the Constitution expressly grants every person the right to institute proceedings where a violation or threatened violation of the Bill of Rights is alleged. Any person who seeks to enforce constitutional rights may do so directly in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, without prior leave of the Court. 7. In view of the foregoing analysis, the Court finds that the present application is devoid of merit and is accordingly dismissed. 8. The file is hereby ordered closed. DATED, SIGNED AND DELIVERED THIS 14TH DAY OF NOVEMBER, 2025. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19458/eng@2025-11-14 2
page 2 of 2