Kennedy Mwenda Mutugi v Republic

7. In submissions dated 15th April 2026, the Applicant stated that this court had the power to review the mandatory life sentence. That section 364 of the Criminal Procedure Code and Article 165 (6) & (7) of the Constitution vests this court with supervisory jurisdiction over subordinate courts. 8. The Applicant further submitted that the court had discretion to impose a sentence other than the mandatory sentence. He relied on the famous case of Francis Karioko Muruatetu and another v. Republic 2017 eKLR, in which the Supreme Court held that:“ Mandatory sentences that deprive courts of discretion are unconstitutional as they violate the right to a fair trial and the right to mitigation.” 9. The Applicant further relied on Jared Koita Injiri v.Republic [2019] eKLR, and Dismas Wafula Kilwake v. Republic [2018] eKLR, which upheld judicial discretion in sentencing. 10. The Applicant further set out mitigating factors as follows: i. First Offender: The Applicant had no prior criminal record, demonstrating that the offence was not habitual. ii. Youthfulness at the time of Offence: The Applicant was approximately 19 years old, an age associated with immaturity and susceptibility to poor judgement. iii. Remorsefulness: The Applicant has shown genuine remorse and regret for his actions iv. Rehabilitation and Reform: During incarceration, the Applicant has maintained good conduct, avoided disciplinary infractions and demonstrated readiness for reintegration into society. v. Positive Prison Record: The Applicant has coexisted peacefully with prison authorities and fellow inmates. vi. Prospects or Reintegration: The Applicant has reformed and is capable of becoming a lawabiding and productive member of society. 11. The Applicant submitted that sentencing ought to serve the interest of justice. He prayed that the mandatory sentence be set aside and he be granted a definite sentence which further takes into account the period he spent in pre-trial custody. 12. The Application was opposed by the Respondent. In submissions dated 20th April 2026, the Respondent stated that the issue of the Applicant’s sentence had been dealt with all the way to the Court of Appeal which afirmed the sentence. That the Applicant was serving a mandatory sentence as provided by law. Analysis and determination. 13. The Applicant was charged, tried and convicted under section 8(1) as read with section 8(2) of the Sexual Offences Act which provides:“ 8(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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12430/eng@2026-07-27 2

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14. As earlier stated, the Applicant’s appeal to both the high court and Court of Appeal were dismissed. 15. In the current Application the respondent has relied on the Muruatetu (Supra) for the proposition that mandatory sentences were unconstitutional for denying a trial court the discretion to mete an appropriate and just sentence. 16. The Applicant further relied on jurisprudence from the Court of Appeal which applied the reasoning in the Muruatetu case to sentences under the Sexual Offences Act. 17. In Julius Kitsao Manyeso v. Republic Petition No. E013 of 2024 [2025] KESC 16 KLR], the Supreme Court held that:62. It has been argued in justifying this state affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgement as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision’s expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it.” …..We therefore reiterate that, this court’s decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.” It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.” 18. From the foregoing, it is clear to this court that the Applicant cannot rely on the Muruatetu decision as jurisprudence from SCORK has since changed. The Supreme Court has since afirmed that mandatory and minimum sentences in the Sexual Offences Act remained constitutional and that the trial courts were obligated to impose them as required by law. 19. It is my finding from the above that the Applicant is serving a lawful sentence which this court has no jurisdiction to interfere with. The Application is dismissed. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 27TH DAY OF JULY, 2026. .......................... R. LAGAT - KORIR JUDGE Ruling delivered in the presence of Applicant acting in person; Ms. Rukunga for the Republic; Muriuki (Court Assistant) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12430/eng@2026-07-27 3

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