1. The Appellant herein was convicted for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The victim was aged 8 years and the applicant was sentenced to serve life imprisonment. His appeal to this court (Githinji J) was unsuccessful. He has now come back to this court with an undated application seeking revision of the sentence of life imprisonment on the ground that the section he was convicted under does not provide for a mandatory sentence of life imprisonment since the section uses the wording “shall be liable to imprisonment for life”. That it is now established that such working in a statute means that the sentence is the maximum that can be imposed by the court and hence the court has discretion to impose a lesser sentence. That at the time of conviction he was a first offender and a family man. That he is now of the age of 65 years. He argued that the sentence of life imprisonment was not deserved.
2. The application is made pursuant to the provisions of section 364 of the Criminal Procedure Code that gives the High Court power during revision of a matter from a subordinate court to alter or reverse an order from a subordinate court other than an order of acquittal.
3. The applicant in submitting that the wording of section 20(1) of the Sexual Offences Act does not provide for a mandatory sentence relied on the Court of Appeal decision in Swabir Bukhet Labhed v Republic Malindi CA CR. APP No.52 of 2018 where it was held that the words “shall be liable to…” simply connote that the prescribed sentence is the maximum and that the court is allowed to depart from it and impose a lesser one, depending on the peculiar facts and circumstances of the case at hand.
4. The Applicant also cited the case of MK v Republic (2015) EKLR where the Court of Appeal held as follows:
“ 19. What does “shall be liable” mean in law" The Court of Appeal for East Africa in the case of Opoya vs Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only ; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James vs Young 27 Ch. D. at p. 655 where North J. said:
“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.
5. The Respondent did not file a response to the application.
6. There is no doubt from the authorities cited above that the wording in section 20(1) of the Sexual offences Act on “shall be liable to imprisonment for life” only connote the maximum sentence that may be imposed by the court and does not connote a mandatory sentence of life imprisonment. This means that where an accused is found guilty under the section for defiling a child under the age of 18 years, the court has discretion to impose a sentence of upto life imprisonment. The Applicant in this case defiled a child of the age of 8 years. The trial court sentenced him to serve life imprisonment. His appeal to the High Court on conviction and sentence was rejected. The question then is whether the review application before this court is tenable in view of the fact that the Applicant`s appeal on the sentence has already been rejected by this same court (Githinji J).
7. The application herein is basically made under section 362 of the Criminal Procedure that provides as follows:
“The High Court may call 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 if any such subordinate court”
8. From the above provision, it is clear that the powers of this court in revision of sentences or orders is only confined to review of orders passed by a subordinate and does not extend to review of orders made by a court of equal jurisdiction or a court of higher jurisdiction than this court. The Applicant made an appeal to the High Court. I have perused the judgment of Justice Githinji in the said appeal. The learned judge in rejecting the appeal on sentence imposed on the applicant stated that:
“…considering the circumstances under which the offence was committed, where the father prior to the incest had bought her (the victim) beer and cigarette, thus a minor school girl into harmful substances at such an early age, only to end up penetrating her; and also considering the effect such had to the victim, the life imprisonment sentence is well deserved. I see no need of disturbing the same in favour of the appellant”.
9. The appellant having made an appeal against the sentence and the same having been rejected by a judge of equal jurisdiction, there is no legal basis for this court to interfere with the order of the learned judge. The option for the applicant in case he was dissatisfied with the decision of Justice Githinji was to make an appeal to the Court of Appeal. Consequently, I do not find any merit in the application and the same is dismissed.
Delivered, dated and signed at GARSEN this 16 th day of September, 2026
In the presence of:
Mr. Oluoch for Respondent
Applicant – present virtually at GK Prison Malindi
Court Assistant – Ms Rahma
2. The application is made pursuant to the provisions of section 364 of the Criminal Procedure Code that gives the High Court power during revision of a matter from a subordinate court to alter or reverse an order from a subordinate court other than an order of acquittal.
3. The applicant in submitting that the wording of section 20(1) of the Sexual Offences Act does not provide for a mandatory sentence relied on the Court of Appeal decision in Swabir Bukhet Labhed v Republic Malindi CA CR. APP No.52 of 2018 where it was held that the words “shall be liable to…” simply connote that the prescribed sentence is the maximum and that the court is allowed to depart from it and impose a lesser one, depending on the peculiar facts and circumstances of the case at hand.
4. The Applicant also cited the case of MK v Republic (2015) EKLR where the Court of Appeal held as follows:
“ 19. What does “shall be liable” mean in law" The Court of Appeal for East Africa in the case of Opoya vs Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only ; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James vs Young 27 Ch. D. at p. 655 where North J. said:
“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.
5. The Respondent did not file a response to the application.
6. There is no doubt from the authorities cited above that the wording in section 20(1) of the Sexual offences Act on “shall be liable to imprisonment for life” only connote the maximum sentence that may be imposed by the court and does not connote a mandatory sentence of life imprisonment. This means that where an accused is found guilty under the section for defiling a child under the age of 18 years, the court has discretion to impose a sentence of upto life imprisonment. The Applicant in this case defiled a child of the age of 8 years. The trial court sentenced him to serve life imprisonment. His appeal to the High Court on conviction and sentence was rejected. The question then is whether the review application before this court is tenable in view of the fact that the Applicant`s appeal on the sentence has already been rejected by this same court (Githinji J).
7. The application herein is basically made under section 362 of the Criminal Procedure that provides as follows:
“The High Court may call 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 if any such subordinate court”
8. From the above provision, it is clear that the powers of this court in revision of sentences or orders is only confined to review of orders passed by a subordinate and does not extend to review of orders made by a court of equal jurisdiction or a court of higher jurisdiction than this court. The Applicant made an appeal to the High Court. I have perused the judgment of Justice Githinji in the said appeal. The learned judge in rejecting the appeal on sentence imposed on the applicant stated that:
“…considering the circumstances under which the offence was committed, where the father prior to the incest had bought her (the victim) beer and cigarette, thus a minor school girl into harmful substances at such an early age, only to end up penetrating her; and also considering the effect such had to the victim, the life imprisonment sentence is well deserved. I see no need of disturbing the same in favour of the appellant”.
9. The appellant having made an appeal against the sentence and the same having been rejected by a judge of equal jurisdiction, there is no legal basis for this court to interfere with the order of the learned judge. The option for the applicant in case he was dissatisfied with the decision of Justice Githinji was to make an appeal to the Court of Appeal. Consequently, I do not find any merit in the application and the same is dismissed.
Delivered, dated and signed at GARSEN this 16 th day of September, 2026
In the presence of:
Mr. Oluoch for Respondent
Applicant – present virtually at GK Prison Malindi
Court Assistant – Ms Rahma