Justus Nderitu Muigai v Republic

Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) by the Supreme Court [Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ]. 4. Subsequently in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR), the Supreme Court [M.K. Koome, CJ, PM Mwilu, DCJ & VP, M.K. Ibrahim, S.C. Wanjala, I. Lenaola, N. Ndungu & W. Ouko, SCJJ] directed as follows: The course that courts below the Supreme Court had taken had resulted in incertitude and incoherence in the sentencing framework in Kenya and it had given rise to an avalanche of applications for resentencing. Sentences that were confirmed at the High Court and the Court of Appeal, had been returned to the Magistrate's Courts by appellants and they had been revised. Magistrate's courts had entertained such applications for re-sentencing without jurisdiction. Additionally, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that were pending hearing and determination, either in the High Court or the Court of Appeal, had also had their sentences revised by the Magistrate’s Courts without disclosing the fact that pending appeals existed in superior courts. There was no harmony when the revision of sentences was done by the courts. Sentences imposed after re-sentencing ranged from commutation to the period served, probation, reduction of sentences to some specific period, or the preservation of the maximum sentences. The Supreme Court's decision did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. The decision was not an authority for stating that all provisions of the law prescribing mandatory or minimum sentences were inconsistent with the Constitution. 5. The effect of the directions was that Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) does not apply to other offences other than murder. 6. When the matter came up for hearing on 28.05.2025, the court warned the appellant that it was likely to reinstate the life sentence, which is the lawful sentence. The matter was subsequently adjourned to allow him to reflect. The matter came up today, and the applicant reiterated his application for relief under Section 333(2) of the Criminal Procedure Code, despite the earlier warning. The question before me is what orders should be given in this case. 7. The issue of sexual offences and the punishments thereunder were settled by a binding decision of the supreme court 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) (Judgment), where the Supreme Court [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] held as follows on 12.07.2024: Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have a grave effect on other convicted and sentenced persons who were charged with the same offense. Inconsistency in sentences for the same offenses would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly led and fully argued before the superior courts below. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1362/eng@2026-02-12 2

page 2 of 4

65. The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such an impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular section 8 that would have been relevant to the respondent’s case. We must also reafirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. 8. 9. This matter was heard and determined by both the High Court and the Court of Appeal. The decisions are reported as the applicant has sought review. When the matter came in the morning, I informed the parties that the applicant is serving an illegal sentence. The lower court, Hon. Kagendo, had no power to vary sentences under the Sexual Offenses Act. Sections 8(1) and 8(2) under which the applicant was charged provides as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The court has no duty to equate the life sentence. In the case of Republic v Manyeso [2025] KESC 16 (KLR) the Supreme Court [PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165(3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication. 68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1362/eng@2026-02-12 3

page 3 of 4

functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act. 69. 10. We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences. The sentence for defiling a child below the age of 11 years is cast in stone. Therefore, the court below erred in purporting to reverse the decision of this court and the Court of Appeal. The decision is void ab initio. The life sentence hitherto meted out is therefore reinstated. The net effect is that the application is dismissed. Determination 11. In the circumstances, I make the following orders: a. The application herein lacks merit and is dismissed. b. The order of Hon. Kagendo (CM) converting a life sentence to 25 years is set aside as it is illegal. In lieu thereof, the court reinstates the life sentence hitherto meted out by Hon. F. W. M Macharia, SRM. DELIVERED, DATED AND SIGNED ON THIS 12TH DAY OF FEBRUARY, 2026. Judgment delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of: Ms. Kaniu for the State Applicant present Court Assistant – Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1362/eng@2026-02-12 4

page 4 of 4