' The applicant was charged in the Chief Magistrate’s Court at Thika with offence of defilement contrary to Section 8(1) and (4) of the Sexual Offences Act Chapter 63A of the Laws of Kenya. It was alleged that on 22-01-2022 at Kiganjo area, Thika Constituency within Kiambu County, he intentionally caused his penis to penetrate the vagina of S.W. a child aged sixteen years. The applicant was tried, convicted and sentenced to serve ten years imprisonment. Judgement was delivered on 9-05-2025 and sentence handed on 28-05-2025.
He has now brought this application seeking this court to exercise its powers under Article 165(6) and (7) of the Constitution and reduce the sentence to the period between the time he was arrested and now. That would mean that this court in allowing the application will have reduced the sentence to 3 years and 9 months since the charge sheet shows that he was arrested on 26-01-2022. He claims that he is of good character and remorseful and asks the court to consider the prison decongestion policy and find in his favour.
The respondent has opposed the application through grounds of opposition dated 30 th July 2025. The respondent contends that the offence for which the applicant was convicted is a felony which attracts a prison term of fifteen years and the trial court was very lenient on the applicant.
I have read the submissions of the applicant. Section 8(1) of the Sexual Offences Act provides that ‘a person who commits an act which causes penetration with a child is guilty of an offence termed defilement’; while Section 8(4) of the same Act provides that ‘a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’
It is indisputable that the minimum sentence for the offence the applicant was charge with is fifteen years. The applicant confirms that he is not appealing the conviction which means that he does not challenge the age of the child.
The sentencing guidelines and the decongestion policy cited by the applicant cannot override or supersede clear statutory provisions and can only apply where they do not conflict with the relevant Act of Parliament. They are actually not applicable in matters of defilement.
The applicant claims to be a layman and uneducated but it is trite that ignorance of the law cannot avail a defence. Similarly, I do not count the fact that the applicant is a first offender and remorseful contained in his submissions as mitigating factors which would justify reduction of the sentence.
In these circumstances, this court finds no reason to disturb the sentence meted by the trial Magistrate. Actually, in my view, the sentence is illegal as it was below the minimum sentence which, I agree as submitted by the respondent still remains legal and constitutional. However, since there is no application for enhancement of the sentence, I will leave the issue at that point.
Having said the above and having gone through the record of the trial court, I am unable to see anything that deserves orders for revision of the sentence. In conclusion the application dated 21 st February 2025 has no merits and the same is hereby dismissed.
Dated signed and delivered at Nairobi this 10 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of the applicant (online from Kamiti Medium Prison) and Miss Jebet for the respondent.
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He has now brought this application seeking this court to exercise its powers under Article 165(6) and (7) of the Constitution and reduce the sentence to the period between the time he was arrested and now. That would mean that this court in allowing the application will have reduced the sentence to 3 years and 9 months since the charge sheet shows that he was arrested on 26-01-2022. He claims that he is of good character and remorseful and asks the court to consider the prison decongestion policy and find in his favour.
The respondent has opposed the application through grounds of opposition dated 30 th July 2025. The respondent contends that the offence for which the applicant was convicted is a felony which attracts a prison term of fifteen years and the trial court was very lenient on the applicant.
I have read the submissions of the applicant. Section 8(1) of the Sexual Offences Act provides that ‘a person who commits an act which causes penetration with a child is guilty of an offence termed defilement’; while Section 8(4) of the same Act provides that ‘a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’
It is indisputable that the minimum sentence for the offence the applicant was charge with is fifteen years. The applicant confirms that he is not appealing the conviction which means that he does not challenge the age of the child.
The sentencing guidelines and the decongestion policy cited by the applicant cannot override or supersede clear statutory provisions and can only apply where they do not conflict with the relevant Act of Parliament. They are actually not applicable in matters of defilement.
The applicant claims to be a layman and uneducated but it is trite that ignorance of the law cannot avail a defence. Similarly, I do not count the fact that the applicant is a first offender and remorseful contained in his submissions as mitigating factors which would justify reduction of the sentence.
In these circumstances, this court finds no reason to disturb the sentence meted by the trial Magistrate. Actually, in my view, the sentence is illegal as it was below the minimum sentence which, I agree as submitted by the respondent still remains legal and constitutional. However, since there is no application for enhancement of the sentence, I will leave the issue at that point.
Having said the above and having gone through the record of the trial court, I am unable to see anything that deserves orders for revision of the sentence. In conclusion the application dated 21 st February 2025 has no merits and the same is hereby dismissed.
Dated signed and delivered at Nairobi this 10 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of the applicant (online from Kamiti Medium Prison) and Miss Jebet for the respondent.
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