Dickson Kijana Abudi VS The Republic Dickson Kijana Abudi VS The Republic

The applicant by way of an undated Chamber Summons application received in court on 27^th January 2024 as applied to this court to have the court call for the court file in criminal case No. 1945 of 2015 from the Chief Magistrates Court Makadara.
In the said matter the accused person had been charged with the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006.
The particulars of the charge were that on 16^th day of June 2015 at Jamaica , Lungalunga at Industrial Area within Nairobi he intentionally caused his penis to penetrate the vagina of Lorren Khabere Kavitu a child aged 7 Years.
The accused was tried and convicted of the alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act and sentenced to serve a prison term of 10 Years on the 29^th October 2021.
The applicant now seeks to have his sentence revised and in substitution therefore an order for community service be imposed for the remainder of his prison term.
The applicant says he has been in custody since the 16^th of June 2015 and he has over the years learned useful lessons thus this court should be inclined to view him with a merciful eye. He further states that he is sick and his parents are unwell too.
This application came up on 9^th of December 2024and Mr. Chebii for the state submitted that sentencing is purely a discretionary matter and in his view the sentence imposed by the Lower court was lawful and proper and therefore he did not see any reason for its review downwards. He urged the court to dismiss the application as the same as no merit.
This court has considered the application and the plea by the applicant that he has since reformed and is ready to serve community service.
Section 11 (1) of the Sexual Offences Act states:-

“ Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with the child and is liable upon conviction to imprisonment for a term of not less than 10 years.”
It is clear from this provision that the applicant got the minimum sentence provided for in law and therefore the learned Honorable magistrate in sentencing the applicant must have taken into account all the mitigating circumstances of the case.

Whereas it may be true that the applicant is ailing and his parents too, this court does not find that to be a good ground to exercise the powers of revision conferred upon this court under Article 165 (6) of the Constitution of Kenya 2010 as read together with Section 362-365 of the Criminal Procedure Code.
The applicant has not satisfied this court that the sentence imposed was illegal, irregular, incorrect or improper to justify the intervention by this court.
In determining this application, this court has taken into account the tender age of the victim. For a man of sound mind fully in co troll of his faculties to imagine let alone attempt to have intercourse with a child of 7 years borders on the absurd. It is this kind of offences that shock the conscience of every right -thinking member of society who has the interest of the children of this country at heart.
This court has a duty to protect the interest of the child victim in this case. Under Section 8 of the Childrens Act N0. 29 of 2022 this court is enjoined to ensure that in matters affecting children every decision taken thereof must be in the best interests of the child.
This court therefore finds that it is in the best interest of the Kenyan child generally to keep the applicant in prison custody until the last day of his sentence and I must point out to him that he should count himself very lucky to have appeared before a judicial officer who was minded to grant him the minimum sentence. It could have been worse if this was the sentencing court.
In the end, this court finds that the application has no merit and is hereby dismissed.
It is so ordered.