5.The Petitioner challenges the mandatory minimum sentence of fifteen years imposed on him. He submits that sentencing should be a judicial function and not a legislative function. He cited the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021)  KEHC 13118 (KLR) (17 May 2022) (Judgment) where it was held:The Court concluded that:
6.The Petitioner stated that he has advanced his theological studies and is now a respectable pastor in the prison. The prison authorities are satisfied that he has reformed and he has been very helpful in preaching and counselling the other convicts and even the prison authorities. The petitioner has also been facing health problems and has been in and out of surgery.
7.The Petitioner also has three children one in university and two in secondary school, a wife and an elderly mother who is now 80 years old, who are all dependent on him and his continued incarceration has really made them suffer.
8.His businesses have also received a big hit due to his imprisonment and this has made his employees and their families also suffer. Before his imprisonment he was very philanthropic and was known in his community for this and many really miss him.
9.The respondent submits that Article 165(3) of the Constitution outlines the scope of the jurisdiction of the High Court.
10.Article 165(3)(b) grants this Court. Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of rights has been violated; infringed or threatened. Jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of:a)The question whether any law is inconsistent with or in contravention of the Constitution.b)The question whether anything said to have be done under the authority of the Constitution or if any law is inconsistent with; or in contravention of the Constitution.
11.The respondent concedes that the Petition raises a constitutional question whose effect is to properly invoke the Jurisdiction of this Court under Articles 22(1) and 23(1) of the Constitution.
Substitution of the mandatory sentence
12.It is the respondent’s submission that this Court, being duly vested with the requisite jurisdiction, should consider the extenuating circumstances that surrounded the Petitioner's case. The aggravating features including the brutality of the crime, whether the Petitioner is remorseful regarding the offence he committed and the pain that the victim's family is feeling in determining the sentence.
13.Further, the respondent urges the Court to consider whether the petitioner has since been rehabilitated with proof of good conduct and industry while in custody.
Analysis and Determination
15.The petitioner was charged and convicted with the offence of defilement contrary to section 8(1)(4) of the Sexual Offences Act. He was sentenced to serve fifteen years in prison.
17.The Petitioner is opposed to the mandatory minimum sentence of fifteen years imposed on him. He states that the sentence is harsh and unjustifiable.
18.The provisions of section 8(1)(4) of the Sexual Offences Act are couched in mandatory terms in respect of the minimum sentence. The petitioner relied on the decision in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021)  KEHC 13118 (KLR) (17 May 2022) (Judgment) where it was stated by the court:
19.I am in agreement with the sentiment in the Maingi case that sentencing is an exercise reserved for the judicial function, and that it is for the court to ensure that sentences, however prescribed by the legislature, are imposed in accordance with the Constitution.
20.Article 28 of the Constitution provides for the right to dignity; and Article 27(1) provides for the right to equality before the law. These presume that a person is not sentenced merely by the act he has done based on the age of the victim. An offender who, for example who with violence, defiles a 16 year old repeatedly, cannot be placed in the same category from the point of sentencing as an offender and victim who fall in love, despite the legal incapacity of the 16 year old victim.
21.Thus, mandatory sentences violate the dignity and respect for the person. They preclude the court from viewing an offender in an individual light as a person with individual humanity.
22.In the case of Taifa v Republic (Criminal Appeal E018 of 2022)  KEHC 14230 (KLR) (24 October 2022) (Judgment) Aburuli J held:
23.In WOR v Republic (Criminal Appeal E017 of 2020  KEHC 412 (KLR) a (26 April 2022) (Judgment) FA Ochieng J (as he then was) held that mandatory sentences under the Sexual Offences was unconstitutional, when he stated inter alia that:
24.Clearly, the above decisions were made by courts of equal status and hence this court is not bound by them, although they are persuasive.
25.In the case of Dismas Wafula Kilwake v R  eKLR the Court of Appeal, referring to the mandatory sentences under the Sexual Offences Act stated:
26.The guidance given in the Dismas Kilwale case is therefore that: a court must ensure that when sentencing under section 8 of the SOA, the interpretation it gives to the sentencing provision must not take away its discretion and independence in meting the sentence.
Whether to Substitute the mandatory sentence
27.In the Taifa v Republic case (supra) Aburuli J held:
28.In the present case the critical question is whether the trial court or High Court at the time of appeal, exercised discretion in meting sentence. The mitigation was:
29.The trial court ruled:Here, the trial court did not exercise any discretion after taking into account the mitigation. It merely meted the minimum sentence provided for.
30.The appeal in the High Court was against both conviction and sentencing. However, the Court did not make any mention of the Muruatetu case or principles, nor did it make any reference to the role of mitigation in the sentencing arrived at in respect of the accused. The High Court stated:
31.In my view, although there is nothing to prevent the courts from meting the minimum sentence in appropriate circumstances after taking into account the mitigation, clearly it must be evident that the mitigation was properly considered and played a role in the actual rendition of the sentence.
32.I have taken into consideration the mitigation pleaded in the first instance and the mitigation now availed.
33.The Prisons Report indicates as follows: that the offender has participated in rehabilitation programmes; that he is obedient and industrious; and that he has embraced the correctional core values of reformation and rehabilitation. In addition, the petitioner provided testimonials of courses he had taken whilst in prison.
34.These are post facto mitigation factors not available at the time of initial sentencing and are more appropriate for purposes of review. Nevertheless, I have taken them into consideration herein.
35.In the end, I declare that the mandatory minimum sentence under section 8(4) SOA is unlawful only if applied without due and considered regard for and incorporation of mitigating circumstances prior to, and in the sentencing exercise. The sentence can itself be meted in law. However, it cannot be applied without due and clear regard to mitigating circumstances, discretion of which the court must show it has taken on aboard.
36.Accordingly, I hereby reduce the sentence of the offender from 15 years to 13 years in the circumstances. The period shall take into account any period spent in custody.