JMI v Republic (ODPP) (Criminal Petition E304 of 2024) [2026] KEHC 788 (KLR) (27 January 2026) (Ruling)
Neutral citation:
[2026] KEHC 788 (KLR)
Republic of Kenya
Criminal Petition E304 of 2024
AC Bett, J
January 27, 2026
Between
JMI
Petitioner
and
Republic (Odpp)
Respondent
(Being a Petition for resentencing from Kisumu Court of Appeal Criminal Appeal No. 204 of 2018 dated 30th August 2024)
Ruling
Background
1.The Petitioner who was convicted for the offence of incest by a Male Person contrary to Section 20 (1) of the Sexual Offences Act in Kakamega Criminal Case No. 1533 of 2010 and sentenced to life imprisonment lost his appeal against the conviction and sentence in Kakamega HCCR.A No. 198 of 2011. Thereafter, he filed a further appeal to the Court of Appeal at Kisumu, the same being Appeal No. 204 of 2018.
2.In a Judgement delivered on 30th August 2024, the Court of Appeal dismissed the appeal in its entirety.
3.The Petitioner has now come to this court vide a Constitutional Petition dated 17th September 2024 in which he prays that the court do set aside the sentence of life imprisonment imposed upon him by the trial court and affirmed by the two appellate courts. The Petitioner also prays that the period which he spent in remand be considered under Section 333 (2) of the Criminal Procedure Code (CPC) and that the court do set aside the life sentence and in its place, determine an appropriate determinate sentence.
4.The gravamen on the Petitioner’s application is that due to the mandatory nature of Section 8(2) of the Sexual Offences act, the trial Magistrate’s discretion in sentencing was totally fettered. The Petitioner states that the mitigating factors in his favour were consequently not considered when the trial Magistrate imposed the sentence. As a corollary, the Petitioner contends that the life sentence imposed upon him is unconstitutional and that he ought to have been given a definite sentence. The Petitioner also seeks sentence re-hearing on the grounds that he has undergone rehabilitation and has since reformed.
5.The Petitioner relies on the provisions of Articles 50(2) (g), 23(1) and 165 3(a) and (b) of the Constitution and argues that the court is seized with jurisdiction to review the sentence.
6.The Petition was opposed by the Respondent who filed grounds of opposition stating inter alia, that the High Court cannot invoke Section 362 and 264 of the CPC to review the sentence after sitting on appeal in the matter as it is functus officio. The Respondent also states that it is for the Legislature and not the courts to prescribe what constitutes a life sentence. They further state that the court is bound by decisions of the Supreme Court and that the application of the mutatis mutandis rationale in the Muruatetu 1 case offends the principle of starre decisis.
7.The Petition was canvassed through written submissions.
Analysis and Determination
8.The sentence for incest is determined on the basis of the age of the victim. Section 20(1) of the Sexual Offences Act provides that:-
9.In this matter the child was aged 9 years and an act of incest against her resulted in a sentence of life imprisonment.
10.There are two issues to be addressed by this court:-a.Whether this court has the jurisdiction to hear the Petition.b.Whether the Petition has merit.
11.The High Court has jurisdiction by virtue of Article 23 (1) and 165 of the Constitution to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.
12.Article 165 (3) (b) and (d) of the Constitution vests the High Court with original unlimited jurisdiction to determine issues concerning the constitutional rights of a Petitioner and provides that:-
13.The Petitioner has exhausted his options of appeal and seeks a sentence re-hearing on account of alleged violation of his constitutional rights.
14.By dint of Article 50 (2) (p) of the Constitution all accused persons are guaranteed rights as follows:-
15.Courts have variously held that the High Court has unlimited jurisdiction in criminal and civil matters and is mandated to enforce fundamental rights and freedoms as enshrined in the Constitution. See Stephen Kimathi Mutunga v. Republic [2019] eKLR.
16.In Michael Kathewa Laichena & Another v. Republic [2018] KEHC 5488 (KLR), Majanja J. held:-
17.It is clear from the proceedings before the Court of Appeal that the court addressed itself on the Petitioner’s claims that the mandatory life sentence imposed upon him was unconstitutional. The court rendered itself thus:-
18.Since the Court of Appeal rightly declined to deal with the issue of the constitutionality of the indeterminate sentence as being beyond its jurisdiction, the Petitioner has a right to approach the High Court and seek redress. I hold that this court has jurisdiction to hear and determine the Petition.
19.The Petitioner has placed his reliance on Julius Kitsao Manyeso v. Republic [2023] KECA 827 (KLR) where the Court of Appeal declared the imposed mandatory life sentence unconstitutional and substituted therefore a determinate term.
20.There has been a rapid evolution in the jurisprudence regarding sentence re-hearing ever since the Muruatetu 1 and Muruatetu 2 decisions. After the Supreme Court made a declaration that the mandatory nature of the death sentence in murder trials was unconstitutional, the courts took their cue and in Philip Mueke Maingi & 5 others v. ODPP & AG, Machakos High Court Petition No. E01 of 2021, Odunga J, as he then was, held that:-
21.Following the Muruatetu 1 case, the Court of Appeal passed Judgements declaring a life sentence unconstitutional. Manyeso v. R (Supra), Evans Nyamara Ayako v. Republic [2023] eKLR.
22.In the case of Republic v. Mwangi, Initiative for strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where the Supreme court declared that by dint of the principal of separation of powers, it was not open to the courts to determine what constitutes a life sentence as it is already defined by statute. The Supreme Court held that:-
23.The Supreme Court further pronounced itself on the issue of life sentences in Republic v. Manyeso [2025] KESC 16 (KLR) and in Republic v Ayako [2025] KESC 20 (KLR) where the court in the latter decision stated:-
24.This court is bound by the decision of the Supreme Court regarding the submission on the constitutionality of life sentence.
25.Having said that, the court finds that the various authorities relied on by the Petitioner are distinguishable as they were all rendered before the Supreme court decisions in Republic v. Mwangi & others (Supra), Republic v. Manyeso (Supra) and the Republic v. Ayako (Supra) cases.
26.Subsequent to the foregoing decisions, the High Court has abided by the principle of stare decisis and reiterated that review and reduction of life sentences to a determined period is acting out of jurisdiction and the sentences prescribed by the statutes are lawful.
27.In Apopo v. Republic [2025] KEHC 6429 (KLR), the learned Justice Musyoka held that:-
28.In Otieno v. Republic [2025] KEHC 8615 (KLR), the Court stated thus:-
29.The court also considered the fact that the Petitioner, was convicted under Section 20 (1) of the Sexual Offences Act, which does not prescribe a mandatory sentence as it provides that a person convicted of the offence against a female who is under eighteen years is liable to imprisonment for life. In JH v. Republic [2024] KECA 228 (KLR), the court considered the import of the proviso to Section 20 (1) of the Sexual Offences Act and that;
30.Notwithstanding the fact that Section 20 (1) of the Sexual Offences Act has been held not to provide a mandatory life sentence, it is important to note that penalties in sexual offences matters are largely determined by the age of the victim. Under Section 8 (2) of the Act, a person who commits an offence of defilement with a child aged eleven (11) years or less shall upon conviction be sentenced to life imprisonment. The ingredients of incest and those of defilement are the same; the only distinction being the fact that in incest, the victim is a child of the offender. Were the Petitioner not related to the victim in this case, he would have faced a mandatory sentence of imprisonment for life. In my view, the act of defiling one’s child is an odious act that calls for the most severe punishment possible. Any penalty for the offence of incest involving a child under aged 9 years should not attract a lesser sentence than that involving defilement of such child and should apply mutatis mutandis despite the fact that Section 20 (1) of the Act is not couched in mandatory terms.
31.On considering the record, it is apparent that the trial court exercised his discretion judiciously and the appellate courts agreed with him. The sentence is therefore lawful.
32.Ultimately, it cannot be gainsaid that the court’s mandate is to interpret the law, and not to amend it. To urge this court to review the life sentence, which is prescribed by law as a lawful sentence for the offence for which the Petitioner was convicted, would be akin to having the court amend the relevant statute. That would be an act of overreach by the court.
33.For the above reasons, I find the Petition bereft of merit and it is hereby dismissed.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA, THIS 27TH DAY OF JANUARY 2026.A. C. BETTJUDGEIn the presence of:Petitioner present from Kibos Maximum PrisonMs. Chala for the State/RespondentCourt Assistant: Polycap