Stephen Kiprotich Koech v Republic

section 8(1) as read with section 8(2) of the sexual offences act No 3 of 2006, where he was sentenced to Life imprisonment. 2. The basis upon which the Application is made is that, the Applicant herein was charged, convicted, and sentenced to life imprisonment for the offence of defilement in Nakuru sexual offences Case No. 137 of 2011. However, that under Article 50(2)(p)(q) of the Constitution of Kenya, the applicant asserts a right to benefit from the least severe sentence and to have his current sentence reviewed. 3. The applicant argues that a life sentence contravenes Sections 216 and 389 of the Criminal Procedure Code regarding mitigation. He further contends that the sentence is inconsistent with the values established in Paragraph 4.1 of the Sentencing Policy Guidelines 2016. 4. He states that the High Court has the competent jurisdiction to determine this matter under Article 165(3)(b) of the Constitution. He also maintains that the court has the power to address infringements of fundamental rights and award remedies under the Constitution and the Practice and Procedure Rules 2010. 5. The applicant declares himself to be a pauper and is requesting a waiver of the costs associated with preparing the application. 6. The Prosecution opposed the Application by their Replying Affidavit sworn by James Kihara, Prosecution counsel, on 23rd October, 2025. He confirms the applicant was lawfully convicted of defilement in Nakuru sexual offences Case No. 137 of 2011, where the State proved its case beyond a reasonable doubt, leading to a life sentence. 7. He acknowledges the applicant’s arguments regarding the unconstitutionality of the life sentence and the request for a downward review after serving nine years, but he invites the Court to find the application unmerited and uphold the original sentence. 8. The prosecution emphasizes the gravity of the offense, stating the applicant robbed the soul of a minor. Further that the applicant has unsuccessfully challenged this decision before, specifically in 2020 when Justice N. Matheka ruled that the Court lacked jurisdiction to review its own judgment. 9. Prosecution asserts that the applicant has failed to raise any substantial doubt regarding his conviction, has shown no remorse or apology, and is effectively wasting court resources. 10. The Respondent submits that life imprisonment is a mandatory sentence for this offense with no room for departure. He distinguishes this case from the Muruatetu decision, noting that while mandatory death sentences were challenged for murder, the Supreme Court in Republic v Joshua Gichuki MwangiSupreme Court Petition No. E018 of 2023, maintained different standards for sexual offenses. 11. The Respondent affirms its commitment to the constitutional provisions cited by the applicant but maintains that the law must be enforced to protect individuals and uphold constitutional tenets. He explains that Sections 216 and 329 of the Criminal Procedure Code are intended to inform the court for a balanced sentencing process, not to reopen the case or allow for arbitrary changes. 12. Reference is made to the 2023 Sentencing Policy Guidelines, which allow for sentence discounts in some cases but strictly limit them for mandatory minimum sentences like those in child sexual offenses to prioritize victim protection. Citing Wanjema v Republic [1971] 1 EA 493, the deponent argues that an appellate court should only interfere with a sentence if the trial court acted on a wrong principle or the sentence is manifestly excessive, neither of which applies here. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2252/eng@2026-02-26 2

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13. The prosecution concludes that a life sentence is commensurate with the seriousness of the crime and prays that the application be dismissed to ensure justice for the child victim. 14. This Application was canvassed by written submissions. However, the Applicant did not file any submissions, and only the Prosecution filed their submissions on 23rd October, 2025. Respondent’s Submissions 15. The Respondent , in opposing the application for a sentence review argues that the application is unmerited, noting that the applicant has repeatedly and unsuccessfully challenged his conviction and sentence in previous proceedings. Specifically, the State highlights that the High Court previously rejected his appeal in HCRA 76/2012 and a subsequent review. The Respondent contends that the court is now functus officio and that the mandatory nature of life imprisonment for sexual offenses against children must be upheld to ensure justice for the victim and public safety. 16. Reliance is placed on two cases including Stephen Kiprotich Koech v Republic [2020] KEHC 235 (KLR), where the court previously held that it could not review its own judgment under Article 50(2)(q) of the Constitution, suggesting the Court of Appeal was the proper forum. 17. Further , the Respondent refers to the case of Republic v Joshua Gichuki Mwangi (Supreme Court Petition No. E018 of 2023) to affirm that the mandatory nature of sentences in sexual offense cases remains distinct from other crimes. 18. The Respondent clarifies that while the case of Muruatetu successfully challenged mandatory maximum sentences, its application is limited to murder cases and does not mandate the same leniency for sexual offences. 19. Further, that in Wanjema v Republic [1971] EA 493, the Court established that an appellate court should not interfere with a sentence unless the trial court acted on a wrong principle or the sentence is manifestly excessive or inadequate. 20. The Respondent emphasises that for mandatory minimum sentences, a discount cannot go below the statutory minimum, and reductions for adult perpetrators of child sexual offenses are exceptional. Determination 21. After considering the application, Affidavits and submissions, the main issue for determination is whether this Court can review the life imprisonment sentence meted against the Applicant for defilement under Section 8(1) and (2) of the Sexual Offenses Act, to a more lenient sentence. 22. The Applicant argues that since the life imprisonment was declared unconstitutional, this Court should substitute his sentence of life imprisonment with another lenient sentence in line with the changes in law. 23. However, in the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), the Supreme Court handled an Appeal from the Court of Appeal that challenged the Court of Appeal’s holding that the sentence of life imprisonment under the Sexual Offenses Act was unconstitutional. The Supreme Court held that the Court of Appeal erred in substituting the life imprisonment sentence with a 40-year sentence. 24. The Court therefore affirmed that legislative authority is vested in Parliament, which defines sentences and the Courts' roles are confined to interpreting and adjudicating the constitutionality of a statute, not rectifying or amending it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2252/eng@2026-02-26 3

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25. The Apex Court recommended that the Attorney General and Parliament develop legislation to define 'what constitutes a life sentence,' suggesting that this function falls within the realm of the Legislature, not the Judiciary and therefore, by defining a life imprisonment to be 40 years, the Court of Appeal usurped legislative powers. 26. Further, in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) , the Supreme Court held that the Court of Appeal acted ultra vires and usurped legislative powers by substituting a life imprisonment sentence with a 30-year term, as the constitutionality of life imprisonment had not been initially litigated at the High Court, which is the court of first instance for constitutional interpretation. 27. The Supreme Court emphasised that defining the parameters of sentences, including life imprisonment, is a function of Parliament, not the Judiciary, and that such a decision by the Court of Appeal arbitrarily created law without legislative involvement or public participation. Furthermore, the Court found that the Court of Appeal violated the doctrine of stare decisis by misapplying the ratio decidendi from Muruatetu I (which specifically dealt with the mandatory death penalty for murder) to other offences with mandatory or minimum sentences. 28. Consequently, the Supreme Court allowed the appeal, reinstated the High Court's judgment, and ordered that the respondent serve life imprisonment as originally sentenced by the Magistrates' Court. 29. From the foregoing, it is evident that the Supreme Court has consistently affirmed that mandatory life imprisonment in Kenya remains constitutional. This means that the indefinite nature of a life sentence under Section 8 (2) of the Sexual Offences Act cannot be redefined to include a specific end date. For such a change to occur, Parliament would need to amend the law, as explicitly stated by the Supreme Court. 30. The Applicant’s current application for resentencing was predicated on the belief that mandatory sentencing had been declared unconstitutional. However, in light of the definitive Supreme Court decisions, his prayer for resentencing is without merit and the same cannot be granted. 31. Consequently, the Applicant's application, dated 7th October, 2024 is hereby dismissed. DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF FEBRUARY, 2026. PATRICIA GICHOHI JUDGE In the presence of: N/A for Stephen Kiprotich Koech-Applicant Ms Anyumba for the Respondent Erickson, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2252/eng@2026-02-26 4

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