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JudgmentABED JUMA VS The Republic3 min read

ABED JUMA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NUMBER E025 0F 2022 IN THE CHIEF MAGISTRATE’S COURT AT SHANZU (HON. D. ODHIAMBO S.R.M)


  1. The Applicant was found guilty on the offence of Attemptd defilement contrary to Section 9(1)(2) of the Sexual Offence Act No. 3 of 2006 and sentenced to 10 years’ imprisonment (including remand period as sentenced) on 13th February, 2023. The Applicant has applied to this Honourable Court to review his sentence by the trial court.
  2. A sentence review report dated 10th October, 2024 by Stephen Muthoka intimated that the Applicantt’s family pleaded for consideration to a non –custodial sentence as he had already served a considerate part of his sentence in prison. There were no security threats established nor any retaliatory threats and therefore his risks were minimal on release. The victim was of the opinion that the offender had learnt his lesson and that his actions were resulted from misguidance and love irresponsibility which he had learnt in the hard way.
  3. According to the report the Applicant was remorseful and regretted his actions and prayed for mercy from this Honourable Court and forgiveness from the victim. He had no record of prison misconduct and commited to respect the law and behave responsibily when released from prison. Contacts available to the victim’s mother remained offline and unavailable therefore they were not interviewed for their opinion on the sentence review.
  4. The Applicant was agreeable to perform unpaid community work for the remainder of his prison sentence and prayed for leniency and consideration for a review. The officer recommended that the Applicant was suitable for a sentence review or more other suitable lenient sentence. The Honourable Court was tasked with the exercise of its discretion and consider revising the offender’s sentence downwards including and not limited to a maximum probation order for rehabilitation and supervision.

Analysis and Determination

  1. Article 50 of the Constitution of Kenya provides for the rights of an accused person as follows: -

(2) Every accused person has the right to a fair trial, which included the right-

(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law. (emphasis mine)

  1. This Court’s powers to review sentences are premised on Article 165 of the Constitution and section 362 of the Criminal Procedure Code which provide as follows: -

Article 1651.

        1. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court.

Criminal Procedure Code362.

362. Power of the High Court to Call for Records

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. (Emphasis mine)

  1. Section 364 of the Criminal Procedure Code outlines the powers of the High Court under article 165 of the Constitution and section 362 of the Criminal Procedure Code and states how the powers are to be exercised. In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence. In the case of any other order other than an order of acquittal, alter or reverse the order.
  2. The Applicant was convicted and sentenced for Attempted defilement. The Sexual Offences Act provides for the offence of attempted defilement under section 9 as follows: -

“9.Attempted defilement

(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

(3)The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section.

  1. I have considered the Sentence Review Report I find that the victim was a 4 year old minor. Accordingly, I find the application not merited and I proceed to dismiss the same.  The convict to complete the lawful sentence meted out on him in prison custody.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……31st.…………DAY OF …………October……………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

The Appellant

M/s. Bebora, Court Assistant;

Ms. Maina……………State Counsel;

    ABED JUMA VS The Republic ABED JUMA VS The Republic