Kagere & another v Attorney General (Petition E645 of 2024) [2025] KEHC 12530 (KLR) (Constitutional and Human Rights) (10 September 2025) (Judgment)
Neutral citation:
[2025] KEHC 12530 (KLR)
Republic of Kenya
Petition E645 of 2024
AB Mwamuye, J
September 10, 2025
IN THE MATTER OF ARTICLES 19(2)(3), 20(3)(4), 21(3), 22(1)(2)(b)(c)(d), 23, 24(1)(c), 156(4)(a)(b), 153(4)(a), 165(3)(a)(b)(d)(i)(ii) AND 258 OF THE CONSTITUTION
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 10(1)(a)(b), 10(2)(b), 27(1)(2)(4)(5), 28, 47 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF INVOICATING OF THE 2ND SCHEDULE OF PRISON’S ACT SUBSIDIARY LEGISLATION
AND
IN THE MATTER OF THE APPLICATION OF SECTION 39 OF THE SEXUAL OFFENCES ACT NO.3 OF 2006
AND
IN THE MATTER OF APPLICATION AND INTERPRETATION OF PARAGRAPHS 1.1.3, 2.3.6 AND 4.7.5 OF THE JUDICIAL SERVICE ACT SENTENCING GUIDELINES (2023)
AND
AND IN THE MATTER OF APPLICATION OF PARAGRAPH 2.7.5 OF THE JUDICIAL SERVICE ACT SENTENCING GUIDELINES (2023)
AND
IN THE MATTER OF THE APPLICATION OF SECTION 30(2) AND SECTION 47 OF THE PRISON’S ACT (CAP 60) LAWS OF KENYA
Between
Joram Maina Kagere
1st Petitioner
Paul Odhiambo Ogunde
2nd Petitioner
and
The Attorney General
Respondent
Judgment
1.The Petitioner approached this Court vide an undated Petition seeking the following orders: -i.An order that the Respondent comply with the demands of Section 47 of the Sexual Offences Act and make regulations that would see the prerequisites to Section 39 of the Act implemented.ii.A declaration that the continued non application of Section 39 of the Act is unconstitutional for it has abjectly violated Articles 10, 24(i)(e), 25(a), 27(1)(2), 28 and 47 of the Constitution.iii.An order that all convicts who qualify the requirements of Section 39 of the Act be transmuted promptly to the said supervision of rehabilitative nature as therein demanded including those that have been disenfranchised by its lack of application.iv.An order that such transmutation as prayed for in prayer (iii) above be promptly effected by the Prisons Department as by law demanded, and that the covert information be relayed to all convicts of the Petitioners’ nature across the country vide the demands of Article 35(1) of the Constitution.v.An order that all convicts who qualify themselves within the gist of Section 39 of the Act be free to make miscellaneous applications for the imposition of the long term supervision albeit of rehabilitative nature to their respective courts as part of their sentence, having served part of their sentence as contemplated in Section 39 (4) of the Act – in prison, a move which will greatly augment the ongoing Rapid Response Initiative Program that has been undertaken by the Judiciary in a bid to decongest our prisons which are already filled beyond capacity.vi.An order that as the Respondent contemplates compliance to Section 39 and 47 of the Sexual Offences Act the 1st Petitioner be accrued the prerequisites and the benefits of Section 47 as read with the Second Schedule of the Prisons Act which provides for how to put into effect the requirements of the Compulsory Supervision orders envisaged therein on priority basis.vii.An order that trial courts promptly apply the gist of Section 39 of the Act within the meaning of Section 169(2) as read with Section 219 of the Criminal Procedure Code as they pronounce the sentences in an apt crisp and unambiguous manner so as to mirror the aspirations of the provisions of Article 24(1)(e) and 259(1) of the Constitution.viii.Any other order that this Hon. Court may deem fair and just in the circumstances of this very humble Petition.
2.The Petition was accompanied by an undated Supporting Affidavit sworn by the Petitioners, Joram Maina Kagere and Paul Ogunde who aver that they were both convicted and sentenced to imprisonment. They state that while in prison, they were both engaged in purposeful and productive rehabilitative avenues which shall foster their re-integration back to the society upon their release from prison.
3.They further aver that they have served a substantial part of their sentences as required by law thus the 1st Petitioner is entitled to the benefits under Section 39 of the Sexual Offences Act No. 3 of 2006, and by dint of paragraphs 1.1.3, 2.3.6 and 4.7.5 of the Judicial Service Act (Sentencing Guidelines 2023) as read with the provisions to Article 73(1) and 10(2) of the Constitution, the authorities in our Penal Institution have completely refused to apply the doctrines and demands of Section 39 of the Sexual Offences Act for our good and the good of Article 47 of the Constitution which also negatively impacts the provisions on Article 28 of the Constitution.
4.The Petitioners aver that, notwithstanding the fact that the 1st Petitioner satisfies the criteria set forth under Section 39 of the Sexual Offences Act, and despite the provisions of Section 47 of the Prisons Act conferring the requisite authority upon the Commissioner of Prisons to implement such orders, no convict has, to date, been directed to serve the remainder of their sentence under a Compulsory Supervision Order, nearly two decades after the enactment of the Sexual Offences Act (SOA).
5.According to them, this procedural lull belittles the edits of Articles 24(i)(e), 10(i)(b), 27(i), 28, 47, 73 and 259 (1) of the Constitution.
6.They Petitioners contend that Article 47 and Article 24(1)(e) of the Constitution delegates to the 1st Petitioner, an entitlement to a less restrictive means of punishment so as to achieve the purpose of our punishment regime, the restrictive means of which is apparently provided vide Section 39 of the SOA as intertwined with the provisions of Article 47 of the Prisons Act.
7.In response and in opposition to the Petition, the Respondent filed Grounds of Opposition dated 3rd February 2025 where they averred that the Petition herein does not meet the threshold of a Constitutional petition as laid down in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR.
8.The Respondent further avers that the Petitioners have failed to discharge the burden of proof in demonstrating the specific nature or manner in which their rights have allegedly been infringed, whether under the Constitution or any other written law, in relation to Section 39 of the Sexual Offences Act. The Respondent contends, in addition, that the reliefs sought by the Petitioners are unconstitutional, being unlawful, lacking legitimacy, tenuous, and devoid of any legal foundation or justification.
9.The Respondent contends that the applicability of Section 39(2) of the Sexual Offences Act is limited to instances where the trial court expressly issues an order pursuant thereto as part of the sentence. Furthermore, where an appeal is lodged, the validity of such an order must be raised as a specific ground of appeal, upon which the appellate court shall render a determination in accordance with the provisions set out under Section 39(4) of the Sexual Offences Act.
10.The Respondent further argues that a long-term supervision order may only be issued by a competent court as an integral part of the sentencing process. This implies that such an order may be made at the time of trial, during the hearing of an appeal against conviction and sentence, or pursuant to an application for review of sentence by the convict. Accordingly, the Respondent contends that, notwithstanding whether an accused person qualifies as a dangerous sexual offender under Section 39(1) of the Sexual Offences Act, in the absence of an express order for long-term supervision incorporated into the sentence by the court, the accused cannot subsequently seek to invoke or enforce such an order after having served their custodial sentence.
11.The Petition was canvassed by way of written submissions, and in compliance all parties filed their submissions.
Petitioners’ Submissions
12.The Petitioners filed submissions dated 5th January 2025 where they submitted that ever since the Sexual Offences Act was assented to on the 21st day of July 2006, no trial court is known to have applied the provisions of Section 39(4) of the Sexual Offences Act while sentencing even after branding themselves as ‘dangerous sexual offenders’ as branded from the provision.
13.They relied on the case of Mokela vs The Staate (135/11) (2011) ZASCA 166 where the Supreme Court of South Africa held that an Appellate Court does not enjoy the carte blanche to interfere with the sentences which have been properly imposed by a sentencing court. They thus assert that Section 39(2) of the Sexual Offences Act orders a sentencing court to see to it that during sentencing an individual an individual who qualifies for the edicts of the provision should be placed under long-term supervision of rehabilitative nature for a period of not less that five (5) years being part of a term of imprisonment imposed by Court.
14.The Petitioners further submit that the doctrine in question appears never to have been applied by sentencing courts, and assert that the Attorney General has, in effect, sought to curtail or unduly influence the jurisdiction and discretion of the Magistrates’ Courts, particularly with respect to the application of Alternative Dispute Resolution mechanisms in cases involving sexual offenders.
15.It is the Petitioners’ submission that the rights of persons who have been sentenced to serve various imprisonment terms vide the penal regime of the Sexual Offences Act No. 3 of 2006 have been and continue to be denied their rights to the prerequisites of Section 39(4) of the Act for the trial courts have systemically failed to put into gears the relevant provisions of law while sentencing them thus subjecting them to cruel, inhuman and degrading punishment, granting this court jurisdiction to determine the issues raised in the instant Petition.
16.They further submit that after the trial court issues a sentence to a convict under the Sexual Offences Act, the Commissioner of Prisons should notify the relevant court about the prisoners who qualify to be placed under the long-term supervision program with a view of undergoing the exposition contemplated in Section 39(4) of the Sexual Offences Act in the likely event the supervisory program was skipped during sentencing.
Respondent’s Submissions
17.The Respondent filed submissions dated 25th February 2025, wherein the Office of the Attorney General asserted that Section 39 of the Sexual Offences Act contemplates the imposition of a non-custodial sentence, namely a long-term supervision order, in certain cases involving sexual offences. It was submitted that the discretion to impose such an order lies exclusively with the trial court. The Respondent further averred that a plain reading of Section 39 reveals that the issuance of such an order is not mandatory, and that it must be expressly made by the trial court as part of the sentencing order.
18.They further stated that regardless of whether the accused in question falls within the category of dangerous sexual offender under Section 39(1) of the Sexual Offences Act, without an express order by the court, given as part of the sentence, the accused cannot purport to seek the order later on after serving their sentence.
19.Reliance was placed on the case of JK v Republic [2024] KEHC 14934 (KLR) and the case of Fred Otieno Odhiambo vs Republic [2019] eKLR.
20.The Respondent submitted that under Section 39(2) the prisons department can only act on the orders issued by the court as it does not have the powers to create a structure for the review of sexual offences in prison, as upon proclamation of the sentence by the court, the decision meted is deemed to be functus officio. Reliance is placed in Nathan Khaemba Makokha & others v Attorney General & another [2022] eKLR, and Langat v Republic [2023] KEHC 19746 (KLR).
21.The Respondent contends that the Petition has not pleaded with any particulars or with reasonable clarity on how the Petitioners rights have been violated and the extent of the violation and also that the Petitioners have not demonstrated how the Respondent has infringed such rights or even how Section 39 relates to the application of such rights thus the instant petition should be dismissed. They relied on the Supreme Court case of Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR.
Petitioners’ Further Submissions
22.The Petitioners filed further submissions, which were undated, wherein they submitted that paragraphs 39 to 50 of the Petition sufficiently demonstrate the prejudice suffered by individuals who would otherwise have qualified for classification as dangerous sexual offenders, due to the consistent failure to invoke the relevant, albeit expunged, statutory provisions. The Petitioners further reiterated the contents of their Petition and the supporting Affidavit, and maintained their position in opposition to the Grounds of Opposition filed by the Respondents.
Analysis And Determination
23.Having carefully considered the Petition, the responses, the arguments by the parties and the decisions relied on, the following key issues arise for determination: -i.Whether the Petitioners’ rights under Articles 10, 24(i)(e), 25(a), 27(1)(2), 28 and 47 of the Constitution have been violated by the courts not invoking Section 39(1) and (2) of the Sexual Offences Act.
24.It is clear that this petition revolves around the interpretation of Section 39 of the Sexual Offences Act, which section the Petitioners contend violates their rights under Articles 10, 24(i)(e), 25(a), 27(1)(2), 28 and 47 of the Constitution.
25.Section 39(1) and (2) of the Sexual Offences Act provide as follows:
26.It is the trial court that makes an order for that in the event the offender is released after serving part of his sentence, the prisons department shall ensure that the offender is placed under long-term supervision by an appropriate person for the remainder of the sentence.
27.The Petitioners seek a declaration that Section 39 of the Sexual Offences Act No. 3 of 2006 allows a court of law to release a dangerous sexual offender after he or she has served a substantial term of the imprisonment. In the instant Petition, the 1st Petitioner states that he is remaining with a five-year sentence and should therefore be placed under long-term supervision to serve the remaining term.
28.Section 39 however provides that where a convict is declared to be a dangerous sexual offender and is sentenced to imprisonment without an option of a fine and, as part of the sentence, the court orders that in the event such offender is released, for any reason, before serving his full term of imprisonment imposed by a court, the prisons department should ensure that the offender is placed under long-term supervision. The section does not oblige a court of law to release a dangerous sexual offender after he or she has served a substantial term of imprisonment as implied by the Petitioners. The Court is not obligated to direct release of a person declared to be a dangerous sexual offender upon serving a substantial term of imprisonment since such a term is neither provided for nor is it defined.
29.The Petitioners further seek a declaration that all offenders sentenced under the sentencing provisos of section 8 of the Sexual Offences Act qualify to be termed dangerous sexual offenders and are thus eligible to the long-term supervision of five (5) years as provided under Section 39 of the Sexual Offences Act. Whereas one of the situations where a convict may be declared a dangerous sexual offender is where a convict has been convicted of a sexual offence against a child, the provision does not state that in these circumstances, the convict must be declared to be a dangerous sexual offender.
30.It is for the trial court to consider the circumstances of the offence and decide whether or not to declare the offender a dangerous sexual offender. The Petitioners have not shown or attached any evidence to show that they were declared “dangerous criminals” and even though the 1st Petitioner qualified as a dangerous sexual offender under Section 39(1) of the Sexual Offences Act, the trial court never declared him so therefore, the prayer for declaration for long-term supervision fails. In addition, this Court cannot declare that all offenders sentenced under the sentencing provisions of Section 8 of the Sexual Offences Act do qualify to be termed dangerous sexual offenders as that would amount to fettering the discretion of the trial courts that make decisions depending on the circumstances of each case.
31.I also agree with the decision in Fred Otieno Odhiambo vs Republic [2019] eKLR where the court stated as follows:
32.The Petitioners were tried and properly sentenced however, they seek what is essentially a review of the sentence meted out and seem to be seeking for an appeal through the backdoor. In the absence of an order by the trial court made as part of the Petitioners’ sentence, there is no basis for their release to long-term rehabilitation as provided under Section 39 of the Sexual Offences Act. The Petitioners have also not demonstrated that they are due for release soon before serving the full term.
33.The guidelines for interfering with sentence were set out in the Court of Appeal in the case of Benard Kimani Gacheru v Republic [2002] eKLR where it was held that:
34.The Petitioners were convicted of a serious offence and sentenced accordingly. Both courts of appeal upheld the conviction and sentence. The process to set aside the conviction and sentence is well set out in law. This court cannot therefore simply overturn conviction and sentence accordingly issued by the trial court.
35.From the foregoing it is evident that whereas the Petitioners qualify for declaration as a dangerous sexual offender or purposes of Section 39 of the Sexual Offences Act, granted the fact that they were convicted of a sexual offence against a child, it is noteworthy that they were not so declared by the Court that convicted and sentenced them.
36.The court for the purposes of Section 39(2) of the Sexual Offences Act is the trial court and therefore in the absence of an order of the trial court, made as part of the Petitioners’ sentence, the orders sought in the instant petition are untenable.
37.Further, the Supreme Court in the decision in Petition No. E018 of 2023, Republic v Joshua Gichuki Mwangi & Others was emphatic that the sentences prescribed under the Sexual Offences Act remain legal, lawful and valid until such a time when the said Act will be repealed. In its own words, the court held as hereunder;
38.Having considered the issues raised in the instant petition, I have no basis for finding that the Petitioners’ rights under Articles 10, 24(i)(e), 25(a), 27(1)(2), 28 and 47 of the Constitution have been violated. In light of the above I am satisfied that the Petitioners’ Petition is misconceived and lacks merit and the same is accordingly dismissed.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF SEPTEMBER 2025.BAHATI MWAMUYEJUDGEIn the presence of: -The 1st Petitioner – Joram Maina present at Kamiti MaximumThe 2nd Petitioner –Paul Odhimabo present at Kamiti MaximumCounsel for the Respondent –Mr. Weche h/b Ms. RobiCourt Assistant – Ms. Lwambia