1. The Applicant moved this Court by a Notice of Motion seeking review of the sentence imposed in Criminal Case No. E019 of 2023 at the CMS Court in Nyamira. He states that he was charged, convicted and sentenced to fifteen years’ imprisonment for the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act and now seeks review of that sentence. He also indicates that he is a pauper in custody.
2. The Respondent opposed the application and submitted that the sentence is illegal, for beig less than the mandatory statutory minimum under the Sexual Offences Act and therefore cannot be reviewed downward.
3. The State contended that the law prescribes a mandatory minimum sentence and, consequently, the Applicant’s attempt to secure a lesser term is untenable.
4. I have considered the Motion, the supporting affidavit and the prosecution’s response.
5. The record indicates that the Applicant was charged and convicted under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(1) creates the offence of defilement, while section 8(2) prescribes the penalty for defilement of a child aged sixteen to eighteen years. Section 8(2) provides that a person convicted under that subsection “shall be sentenced to imprisonment for life.”
6. The trial court imposed a sentence of fifteen years’ imprisonment. Where the law fixes a mandatory minimum, the sentencing court has no latitude to impose a lesser term and is bound to give effect to the legislative command.
7. The High Court’s revisionary jurisdiction under sections 362 to 364 of the Criminal Procedure Code is circumscribed. It is confined to correcting illegalities, improprieties, or material irregularities apparent on the record, and does not extend to an appellate re-assessment of the merits of a sentence or to the substitution of a lesser term in the absence of legal error.
8. In that context, the Respondent’s submission that the sentence “cannot be reviewed” must be properly understood. The sentence imposed by the trial court is, in fact, illegal, as it falls below the mandatory sentence prescribed by section 8(2) of the Sexual Offences Act. Equally, the Applicant cannot, through the revisionary jurisdiction, obtain a lesser sentence than that fixed by statute. Any interference in the manner sought would result in an unlawful outcome. There is therefore no legal basis upon which this Court can grant the relief sought by the Applicant.
9. The Applicant’s plea for leniency, including his assertion that he is a pauper in custody, may evoke sympathy. However, such considerations do not fall within the scope of the revisionary jurisdiction conferred by the Criminal Procedure Code and cannot justify interference with a sentence governed by a mandatory statutory framework.
Disposition
10. From the foregoing analysis, I make the following orders
1) The Notice of Motion for review of sentence has no merit and it is dismissed.
2) The sentence of fifteen (15) years’ imprisonment, imposed under section 8(1) as read with section 8(4) of the Sexual Offences Act, is affirmed as lawful and proper.
2. The Respondent opposed the application and submitted that the sentence is illegal, for beig less than the mandatory statutory minimum under the Sexual Offences Act and therefore cannot be reviewed downward.
3. The State contended that the law prescribes a mandatory minimum sentence and, consequently, the Applicant’s attempt to secure a lesser term is untenable.
4. I have considered the Motion, the supporting affidavit and the prosecution’s response.
5. The record indicates that the Applicant was charged and convicted under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(1) creates the offence of defilement, while section 8(2) prescribes the penalty for defilement of a child aged sixteen to eighteen years. Section 8(2) provides that a person convicted under that subsection “shall be sentenced to imprisonment for life.”
6. The trial court imposed a sentence of fifteen years’ imprisonment. Where the law fixes a mandatory minimum, the sentencing court has no latitude to impose a lesser term and is bound to give effect to the legislative command.
7. The High Court’s revisionary jurisdiction under sections 362 to 364 of the Criminal Procedure Code is circumscribed. It is confined to correcting illegalities, improprieties, or material irregularities apparent on the record, and does not extend to an appellate re-assessment of the merits of a sentence or to the substitution of a lesser term in the absence of legal error.
8. In that context, the Respondent’s submission that the sentence “cannot be reviewed” must be properly understood. The sentence imposed by the trial court is, in fact, illegal, as it falls below the mandatory sentence prescribed by section 8(2) of the Sexual Offences Act. Equally, the Applicant cannot, through the revisionary jurisdiction, obtain a lesser sentence than that fixed by statute. Any interference in the manner sought would result in an unlawful outcome. There is therefore no legal basis upon which this Court can grant the relief sought by the Applicant.
9. The Applicant’s plea for leniency, including his assertion that he is a pauper in custody, may evoke sympathy. However, such considerations do not fall within the scope of the revisionary jurisdiction conferred by the Criminal Procedure Code and cannot justify interference with a sentence governed by a mandatory statutory framework.
Disposition
10. From the foregoing analysis, I make the following orders
1) The Notice of Motion for review of sentence has no merit and it is dismissed.
2) The sentence of fifteen (15) years’ imprisonment, imposed under section 8(1) as read with section 8(4) of the Sexual Offences Act, is affirmed as lawful and proper.