'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL MISCELLANEOUS APPLICATION NO.E109 OF 2025
AMOS MASINDE alias CHRISO……………………………. APPLICANT
VERSUS
REPUBLIC……………………….………………………………RESPONDENT
RULING
1. The Applicant Amos Masinde alias Chriso was charged and convicted of the offence of rape contrary to Section 3(1) (a) (b) of the Sexual Offences Act NO.3 of 2006 in Kimilili CM CR Case (SO) NO. E039 of 2021 and was sentenced to serve 10 years custodial term.
2. Being aggrieved by the conviction and the sentence, the Applicant preferred an appeal being Bungoma HCCRA NO. E023 of 2022 which appeal was heard and dismissed.
3. The Applicant has now moved this court under provision of Section 333(2) of the Criminal Procedure Code and further craves that he be released on probation on grounds that he has already served third of his sentence, that he has been rehabilitated and is transformed. He maintains that this court has jurisdiction under article 165 (3) (b) of the Constitution of Kenya 2010 to grant his prayers.
4. I have considered the Applicant’s application, undated and the affidavit in support thereof and I do note the Applicant has not annexed the proceedings and Judgements of the trial court and the appellate court wherefore this court cannot ascertain whether he has stood trial while in custody and whether he had raised the issue of alleged noncompliance with the provisions of section 333(2) before the appellate court.
5. Whereas the Applicant has deposed that he has already served a third of his sentence and that he is reformed, no iota of evidence has been adduced to support his averment that has been rehabilitated.
6. Given that the Applicant was convicted of a sexual offence, this court is, pursuant to the provision of this article 163 (7) bound by the Supreme Court’s decision in the case of R -vs- Joshua Gichuki Mwangi and others in Petition NO. 18 of 2023 where the court held that sentences prescribed under Section 8 of the Sexual Offences Act are lawful as long as the said section remains valid. In the same breath, Section 3 of the Sexual Offences Act is valid wherefore this court cannot reduce the Applicant’s sentence nor can it release him on probation.
7. On the balance, I do find that this application is devoid of merit and I therefore dismiss it in its entirety.
8. This file is hereby marked as closed.
It is so ordered.
Delivered, signed and dated at Bungoma this 3rd day of October,2025.
M.S. SHARIFF
JUDGE
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL MISCELLANEOUS APPLICATION NO.E109 OF 2025
AMOS MASINDE alias CHRISO……………………………. APPLICANT
VERSUS
REPUBLIC……………………….………………………………RESPONDENT
RULING
1. The Applicant Amos Masinde alias Chriso was charged and convicted of the offence of rape contrary to Section 3(1) (a) (b) of the Sexual Offences Act NO.3 of 2006 in Kimilili CM CR Case (SO) NO. E039 of 2021 and was sentenced to serve 10 years custodial term.
2. Being aggrieved by the conviction and the sentence, the Applicant preferred an appeal being Bungoma HCCRA NO. E023 of 2022 which appeal was heard and dismissed.
3. The Applicant has now moved this court under provision of Section 333(2) of the Criminal Procedure Code and further craves that he be released on probation on grounds that he has already served third of his sentence, that he has been rehabilitated and is transformed. He maintains that this court has jurisdiction under article 165 (3) (b) of the Constitution of Kenya 2010 to grant his prayers.
4. I have considered the Applicant’s application, undated and the affidavit in support thereof and I do note the Applicant has not annexed the proceedings and Judgements of the trial court and the appellate court wherefore this court cannot ascertain whether he has stood trial while in custody and whether he had raised the issue of alleged noncompliance with the provisions of section 333(2) before the appellate court.
5. Whereas the Applicant has deposed that he has already served a third of his sentence and that he is reformed, no iota of evidence has been adduced to support his averment that has been rehabilitated.
6. Given that the Applicant was convicted of a sexual offence, this court is, pursuant to the provision of this article 163 (7) bound by the Supreme Court’s decision in the case of R -vs- Joshua Gichuki Mwangi and others in Petition NO. 18 of 2023 where the court held that sentences prescribed under Section 8 of the Sexual Offences Act are lawful as long as the said section remains valid. In the same breath, Section 3 of the Sexual Offences Act is valid wherefore this court cannot reduce the Applicant’s sentence nor can it release him on probation.
7. On the balance, I do find that this application is devoid of merit and I therefore dismiss it in its entirety.
8. This file is hereby marked as closed.
It is so ordered.
Delivered, signed and dated at Bungoma this 3rd day of October,2025.
M.S. SHARIFF
JUDGE
'