Kiplagat v Republic (Miscellaneous Criminal Application E009 of 2026) [2026] KEHC 12455 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12455 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KABARNET MISCELLANEOUS CRIMINAL APPLICATION E009 OF 2026 TM MATHEKA, J JULY 31, 2026 BETWEEN FRANKLINE KIBET KIPLAGAT .............................................................. ACCUSED AND REPUBLIC ............................................................................................ PROSECUTOR RULING 1. The Appellant herein was charged with the offence of defilement contrary to section 8(1) (3) of the Sexual Offence Act. The particulars are “That on 16th day of December, 2020 at about 1500 hrs at [particulars Withheld] Village Marigat Location in Baringo South Sub-County within Baringo County, intentionally cause his penis to penetrate the Vagina of C J a child aged 15 years”. 2. He pleaded not guilty to both charges; the prosecution advanced its case by calling a total of four (4) witnesses. The ruling was given and accused placed on his defence and was convicted to 20 years imprisonment by the learned Magistrate. 3. He filed HCCRA No. E019/2022. 4. The Judge on appeal stated:“ This court is alive to the prime objectives of the criminal law, which is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done and that there is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the peculiar facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. (See Charles Ndirangu Kibue v Republic [2016] eKLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12455/eng@2026-07-31 1
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For the aforesaid reason the court finds the Sentence imposed by the Trial Court to be within the parameters of the law as provided and thus finds no fault in the same. This Appeal is accordingly dismissed. The Sentence of Imprisonment for a term of 20 years (from 28/01/21) imposed is hereby confirmed.” 5. 6. The applicant has undated Notice of Motion brought under Article 50(2) of the Constitution and section 326 and 364 of the Criminal Procedure Code and SPG of 2016. He seeks orders:2. That the applicant is seeking for review of sentence of 20 years imprisonment to a more leaser and reasonable sentence. 3. That this Hon. Court has the power bestowed by Constitution and the law under article 165 (3) to entertain applications of this nature and award a redress. The application is supported by affidavit sworn on 12/5/2026. He depones:“ 2. That, I was tried, charged, convicted and sentenced to serve 20 years imprisonment for the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offence Act No. 3 of 2006. 3. That, I am seeking this Hon. Court to review my sentence to a more leaser severe punishment. 4. That, I am first offender seeking leniency of the court. 5. That, I am first offender, remorseful, repentant and reformed and rehabilitated person and I have learned the incarceration and pray to be allowed by the honorable court to play role model in the society.” 7. I have carefully considered the application; the affidavit in support. The issue whether the application is tenable. The applicant seeks that his court exercises its powers under Article 165 (3) of the Constitution. 8. This matter has already been dealt with at appeal hence the court cannot be called upon to exercise original jurisdiction. 9. There is no question of denial, violation or infringement, threat to any fundamental rights and freedom of the applicant. 10. In a nutshell the applicant has not raised any issue to be determined in accordance with Article 165 (3). He seeks the exercise of powers under Article 165 (6) & (7). 11. The right to review under Article 50(2) (g) – is to be exercised before court a higher than the one the gave the order/sentence sought to be reviewed as prescribed by law. Applicant has already exercised the right to an appeal from the subordinate court; this court has dealt with this appeal 12. This right to review does not lie here but in a higher court – this court being functus officio– the application is dismissed suo motu. 13. File is closed. RULING DATED SIGNED AND DELIVERED THIS 31ST JULY 2026 MUMBUA T MATHEKA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12455/eng@2026-07-31 2
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JUDGE In the presence of:CA, Momanyi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12455/eng@2026-07-31 3
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