DPP to challenge Nyeri appeal that declared sexual offences minimum mandatory sentence unconstitutional


The Director of Public Prosecution (DPP) wants the Supreme Court to declare the sexual offences minimum mandatory sentences constitutional.

Through Senior Principal Prosecutor Duncan Ondimu, the DPP wants the Supreme Court to set aside and vacate the decision by the Court of Appeal in Nyeri declaring the minimum mandatory sentence unconstitutional.

“This court do issue an order staying the implementation of court of appeal decision that minimum mandatory sentence under Sexual Offences Act are unconstitutional until hearing and determination and/or until the legislative arm of government reviews the various provisions of the Act,” says the DPP.

The decision was issued by the Court of Appeal in Nyeri in the case of Joshua Gichuki Mwangi Vs Republic on 7th October 2022.

Mwangi was found guilty of defiling a 15 year old girl while allegedly threatening her with a knife at their village in 2011. He was sentenced to 20 years in jail but the appeal reduced his sentence to 15 years from the time the trial court judgement was delivered.

The DPP wants the court to declare the imposition of mandatory minimum sentence under Sexual Offences Act is constitutionally valid and in compliance with Articles 27, 28 and 50(2) (p) of the constitution 2010.

According to court documents, the matter should be certified urgent due to public importance. Furthermore, the DPP wants the court to take judicial notice of the high prevalence of sexual offences reported countrywide and currently pending or have been adjudicated. This is estimated to be 15,496 for the financial year 2021/ 2022, demonstrating that it is a matter affecting the society as a whole.

The DPP wants the court to determine whether the appellate court judges erred, misapprehended and gravely misconstrued the constitution on the interpretation and application of Article 159(2) (a) and (b) and 160 of the constitution and holding that the imposition of mandatory minimum sentence under Sexual Offences Act is unconstitutional to the extent that it contravenes and violates judicial independence and fetters the court’s/judicial discretion and conflicts with principals of separation of powers.

It is the prosecution’s argument that the Court of Appeal erred on arriving at the conclusion that the imposition of the minimum mandatory sentence is unconstitutional and failed to consider the rights of victims of sexual offences and violence and their rights to equal protection of the law under Article 27 and their right to access justice under Article 48 of the constitution.

The court heard that the effect of the Court of Appeal decision has violated the principle of separation of powers as espoused under the Constitution of Kenya (2010)