REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL REVISION NO. E063 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Revision from Original Conviction and Sentence of Hon.W.K.Kitur(SRM) delivered on 05/10/2022 in Kilgoris MCSO NO. E041 OF 2022)
MARGARET KEMUNTO….………………………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………………………. RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This ruling concerns a Notice of Motion dated 29 th November 2024 by the applicant, Margaret Kemunto, seeking revision of the sentence imposed upon her by the Senior Principal Magistrate's Court at Kilgoris in MCSO Criminal Case No. E041 of 2022. The application is brought pursuant to the High Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code, Chapter 75 Laws of Kenya. It invokes the court's supervisory jurisdiction over subordinate courts as donated by Article 165(6) and (7) of the Constitution of Kenya, 2010.
2) The record shows that the applicant was charged with two offences, namely sexual assault contrary to section 5(1)(a)(ii) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006, and grievous harm contrary to section 234 of the Penal Code. Upon being subjected to a mental assessment, she was found fit to plead. The charges and every essential ingredient thereof were explained to her in Kiswahili, a language she understood, whereupon she unequivocally pleaded guilty to both counts. The prosecution outlined the facts, which the applicant admitted without reservation, leading the trial court to convict her on her own plea.
3) The facts disclosed exceptionally grave offences committed against a child of tender years. The applicant abducted an eight-year-old girl from her parents in Kisii County, brought her to Lolgorian, falsely represented her as her biological child, and enrolled her in school under a different name. During the period the child was in her custody, the applicant subjected her to repeated acts of physical and sexual abuse. The child was beaten on numerous occasions, burnt with hot metallic objects, including a spoon and screwdriver, assaulted with a hammer, causing injuries to her eye and fingers, and sexually assaulted through penetration with a cooking stick. The abuse only came to light after the child's head teacher noticed her deplorable condition and alerted the police, culminating in investigations, arrest, and prosecution.
4) Following the conviction, the prosecution confirmed that the applicant was a first offender. In mitigation, the applicant informed the court that she was twenty-five years old, had a family, and was remorseful. The trial court nevertheless observed that although she was a first offender, the offences committed were exceptionally heinous, particularly because they were perpetrated against a vulnerable child of six years and nine months who had been unlawfully taken away from her parents and subjected to sustained cruelty. The court found that the offences called for deterrent punishment to protect children from similar abuse and accordingly sentenced the applicant to twenty-five (25) years' imprisonment for the offence of sexual assault and fifteen (15) years' imprisonment for the offence of grievous harm, the sentences to run concurrently.
5) Dissatisfied only with the severity of the sentence and not the conviction, the applicant filed the present application seeking review of the sentence, contending that she is remorseful, has undergone rehabilitation, is a first offender, pleaded guilty, has served a substantial period in custody, and should therefore benefit from a reduced custodial sentence or a non-custodial sentence.
B. APPLICATION
i. Notice of motion
6) The applicant, Margaret Kemunto, filed a Notice of Motion dated and filed on 29 th November 2024 seeking the intervention of the High Court in the exercise of its revisionary jurisdiction under sections 361(1) and (2) of the Criminal Procedure Code and the Probation of Offenders Act. She sought, in the first instance, certification of the application as urgent and its hearing on a priority basis. Substantively, she prayed that the court review the sentence of twenty-five (25) years' imprisonment imposed upon her or, in the alternative, consider releasing her on probation or grant any other appropriate orders that the court may deem. She further sought waiver of court fees on the ground that she was an incarcerated prisoner and therefore a pauper.
7) The application was founded because the applicant had been arrested, charged, and convicted before the Senior Principal Magistrate's Court at Kilgoris in MCCR No. E041 of 2022 for the offences of sexual assault contrary to section 5(1) of the Sexual Offences Act and grievous harm contrary to section 234 of the Penal Code. She deposed that she was sentenced to twenty-five (25) years' imprisonment on the first count and fifteen (15) years' imprisonment on the second count, the sentences to run concurrently. She contended that the High Court should exercise its powers of revision and either review the custodial sentence or allow her to serve the remainder of the sentence on probation.
8) The applicant further asserted that she was a first offender who had come into conflict with the law for the first time and had learnt a painful lesson from the experience. She urged the court to exercise its inherent powers in the interests of justice, including remitting the matter for alternative dispute resolution. She also pleaded that she was the sole breadwinner of her young family, who had allegedly been left destitute and were suffering following her incarceration. On those grounds, she prayed that the sentence be reviewed, varied, or substituted with a non-custodial sentence.
ii. Supporting affidavit
9) In her supporting affidavit, sworn on the same date, the applicant reiterated that she was an adult of sound mind and competent to swear the affidavit. She repeated the circumstances of her conviction and sentencing. She affirmed that she was seeking a revision of sentence or an order permitting her to serve the remaining portion of her sentence on probation. She expressed remorse for the offences, stating that she was sorry and had learnt from her mistakes, and assured the court of her willingness to abide by any orders that it might issue.
C. SUBMISSIONS
i. Applicant’s Submissions
10) The applicant filed written submissions in support of her application for revision of sentence, urging the High Court to exercise its discretion to reduce the custodial sentence imposed by the trial court or, in the alternative, substitute it with a non-custodial sentence. She clarified at the outset that she was not challenging either her conviction or the finding of guilt. Rather, her appeal was confined to the severity of the sentence imposed following her conviction for the offences of sexual assault contrary to section 5(1) of the Sexual Offences Act and grievous harm contrary to section 234 of the Penal Code, for which she had been sentenced to twenty-five (25) years' imprisonment and fifteen (15) years' imprisonment respectively, the sentences to run concurrently.
11) The applicant submitted that the sentence imposed was excessive and implored the court to reconsider it in light of her personal circumstances. She stated that she had already served approximately four years and five months in custody. During that period, she had reflected upon her conduct, learnt valuable life lessons, and undergone rehabilitation. She expressed genuine remorse for the offences and maintained that she was ready to be reintegrated into society as a law-abiding citizen.
12) The applicant further submitted that she was a first offender with no previous criminal record and that the present case represented her first encounter with the criminal justice system. She contended that this factor ought to be treated as a mitigating circumstance warranting leniency. She also informed the court that she had pleaded guilty before the trial court, thereby saving valuable judicial time and resources. She argued that her early plea demonstrated acceptance of responsibility and should be considered in her favour during sentence review.
13) Additionally, the applicant pleaded that she was the sole breadwinner of her family and that her continued incarceration had caused hardship to those who depended on her. She assured the court that if granted the opportunity to return to the community, she would maintain good discipline, refrain from criminal conduct, and comply with any conditions the court might impose. Consequently, she prayed that the court exercise mercy by reducing her sentence or placing her on probation or another suitable non-custodial sentence.
14) The submissions did not cite or rely on any statutory provisions beyond the offences for which she had been convicted, nor did they refer to any judicial authorities or decided cases in support of the application. The applicant's plea was therefore founded entirely on mitigation, remorse, rehabilitation, her status as a first offender, the period already served in custody, her guilty plea, and her personal and family circumstances.
ii. Respondent’s Submissions
15) The respondent, through the Office of the Director of Public Prosecutions, opposed the applicant's application for revision of sentence and urged the court to dismiss it for want of merit. The respondent submitted that the applicant had been lawfully charged in Kilgoris, MCSO Criminal Case No. E041 of 2022 with the offences of sexual assault contrary to section 5(1)(a)(ii) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006, and grievous harm contrary to section 234 of the Penal Code. It was submitted that the applicant unequivocally pleaded guilty to both counts, was duly convicted on her own plea, and, after mitigation, was sentenced to twenty-five (25) years' imprisonment on the first count and fifteen (15) years' imprisonment on the second count, with the sentences ordered to run concurrently. The respondent further pointed out that the applicant had only served approximately two years of the custodial sentence when she filed the present application seeking to have the prison sentence substituted with a probation sentence.
16) The respondent submitted that although the High Court has supervisory jurisdiction over subordinate courts under Articles 50(2)(p) and (q) and 165(6) and (7) of the Constitution of Kenya, 2010, as read together with sections 362 and 364 of the Criminal Procedure Code, that jurisdiction is limited to correcting instances of illegality, incorrectness, impropriety or irregularity in the proceedings or sentence. It was argued that a revision court should not interfere with a sentence merely because another court might have imposed a different sentence, but only where the sentence is manifestly excessive, founded on wrong principles, or where the trial court overlooked material considerations.
17) To support that proposition, the respondent relied on Likanga v Republic (Criminal Revision E227 of 2025) [2025] KEHC 16642 (KLR), where Njakundi J restated the settled principles governing sentence revision and endorsed the decision of the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR. In that case, the Court of Appeal held that sentencing is a matter resting within the discretion of the trial court and that an appellate or revision court will only interfere where the sentence is manifestly excessive in the circumstances, where the trial court overlooked a material factor, took into account an irrelevant consideration, or acted on a wrong principle. The respondent also relied on the South African decision of S v Malgas 2001 (1) SACR 469 (SCA), in which the Supreme Court of Appeal held that an appellate court should not substitute its own sentence merely because it would have imposed a different one, and may only interfere where the disparity between the sentence imposed and that which ought to have been imposed is so marked that it is "shocking," "startling," or "disturbingly inappropriate."
18) On the merits, the respondent submitted that the sentence imposed on the first count was lawful and proportionate to the gravity of the offence. It was argued that section 5(2) of the Sexual Offences Act prescribes a minimum sentence of ten years' imprisonment, which may be enhanced to imprisonment for life. The respondent contended that the trial court acted well within the statutory limits in imposing a sentence of twenty-five years' imprisonment. Counsel further submitted that the admitted facts disclosed exceptionally grave circumstances. According to the prosecution, the applicant abducted a six-year-old child from her parents, changed the child's identity, and subjected her to prolonged physical and sexual abuse, including inserting a cooking stick into the child's genitalia. In those circumstances, the respondent argued that a deterrent sentence was necessary and that the sentence imposed could not be regarded as harsh or excessive.
19) Regarding the second count, the respondent submitted that section 234 of the Penal Code provides for a sentence of life imprisonment for the offence of grievous harm. It was argued that the applicant received a sentence of only fifteen years despite the appalling brutality of the assault. The prosecution submitted that the victim sustained severe injuries after being burnt with a hot spoon and screwdriver, beaten with a hammer on her fingers and eye. She was only rescued after a teacher observed her deteriorating physical condition and alerted the police. In light of the sustained violence inflicted upon a vulnerable six-year-old child, the respondent maintained that the sentence imposed reflected the seriousness of the offence and served the legitimate objectives of punishment, deterrence, and protection of children from similar abuse.
20) In conclusion, the respondent submitted that the applicant had failed to demonstrate any illegality, impropriety, irregularity, or error in principle warranting the exercise of the High Court's revisionary jurisdiction. It was therefore urged that the application be dismissed and that the sentences imposed by the trial court on both counts be upheld in their entirety.
D. ISSUES FOR DETERMINATION
21) Having carefully considered the Notice of Motion, the supporting affidavit, the rival submissions by the parties, and the record of the subordinate court, the following issues arise for determination—
i. Whether this Court has jurisdiction to entertain the application for revision of sentence.
ii. Whether the sentence imposed by the trial court was illegal, incorrect, improper, manifestly excessive, or based on a wrong principle to warrant interference in the exercise of the Court's revisionary jurisdiction.
iii. Whether the applicant has established sufficient grounds to warrant substitution of the custodial sentence with a probation or other non-custodial sentence.
E. ANALYSIS AND DETERMINATION
22) The High Court's power of revision is conferred by Article 165(6) and (7) of the Constitution of Kenya, 2010, and sections 362 and 364 of the Criminal Procedure Code . Section 362 of the Criminal Procedure Code provides that:
"The High Court may call for 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 of any such subordinate court."
23) Section 364 empowers the High Court, upon examining such a record, to make appropriate orders where illegality, incorrectness, impropriety, or irregularity is established.
24) The scope of the revisionary jurisdiction of the High Court is well settled. Revision is not an avenue through which an applicant merely dissatisfied with the severity of the sentence may invite the Court to exercise mercy or substitute the sentence with one it considers more appropriate. Rather, the jurisdiction is supervisory in nature and is confined to correcting illegalities, material irregularities, improprieties, or errors apparent on the record. This principle was succinctly stated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR , where the Court held:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, a sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist."
25) The revisionary jurisdiction of the High Court cannot be invoked merely because another court may have imposed a different sentence. Similarly, the South African Supreme Court of Appeal in S v Malgas 2001 (1) SACR 469 (SCA) held that an appellate court should not interfere with a sentence unless the disparity between the sentence imposed and that which ought to have been imposed is so marked that it can properly be described as "shocking", "startling" or "disturbingly inappropriate."
26) I have carefully examined the original proceedings before the trial court. The plea-taking process fully complied with the procedure set out in Adan v Republic [1973] EA 445 . The charges were read and explained to the applicant in Kiswahili, which she understood. She admitted both counts. The prosecution narrated the facts in detail, including the prolonged abuse inflicted upon the child. The applicant admitted those facts without qualification, whereupon she was lawfully convicted on her own unequivocal plea of guilty. There is therefore no procedural irregularity, illegality, or impropriety in either the plea-taking process or the conviction capable of invoking this Court's revisionary jurisdiction.
27) The applicant expressly states that she is not challenging her conviction but only seeks review of the sentence on account of mitigation. She relies on her status as a first offender, her guilty plea, her remorse, the period already served in prison, her rehabilitation, and her family circumstances.
28) These are undoubtedly relevant mitigating considerations. Indeed, the record demonstrates that the learned trial magistrate expressly took them into account. The court acknowledged that the applicant was a first offender and was remorseful before proceeding to sentence her. It cannot, therefore, be argued that the trial court ignored or failed to consider the mitigation placed before it. Rather, the trial court balanced those mitigating factors against the aggravating circumstances surrounding the offences.
29) The aggravating features in this case are overwhelming. The applicant abducted a vulnerable child from her lawful parents, concealed her identity, falsely claimed the child as her own, and thereafter subjected her to repeated acts of physical torture and sexual violence over an extended period. The child suffered burns inflicted using heated metallic objects, injuries occasioned by a hammer, repeated assaults, and penetration of her genitalia using a cooking stick. The abuse was persistent, deliberate, and calculated, and only came to an end because a vigilant teacher intervened. Such conduct demonstrates exceptional cruelty towards a defenceless child.
30) Sentencing serves several well-recognised objectives, including retribution, deterrence, rehabilitation, denunciation of criminal conduct, community protection, and accountability for unlawful acts. These objectives are encapsulated in the Judiciary Sentencing Policy Guidelines (2016), which require courts to impose sentences that are proportionate to both the offender and the gravity of the offence. In cases involving sexual and physical abuse of children, the objectives of deterrence, denunciation, and protection of vulnerable members of society assume particular significance. As observed by the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR, sentencing remains an exercise of judicial discretion that must be guided by the circumstances of each case and the objectives of criminal justice. Although that decision concerned the mandatory nature of the death sentence, the Supreme Court underscored the need for individualised sentencing while emphasising that courts must balance mitigating factors against the aggravating circumstances of the offence.
31) In the present case, the sentence imposed by the trial court was lawful. Section 5(2) of the Sexual Offences Act prescribes a minimum sentence of ten years' imprisonment, which may be enhanced to imprisonment for life. The sentence of twenty-five (25) years' imprisonment imposed for the offence of sexual assault, therefore, fell well within the statutory limits. Likewise, section 234 of the Penal Code provides that a person convicted of grievous harm is liable to imprisonment for life. Consequently, the sentence of fifteen (15) years' imprisonment imposed on the second count was equally lawful.
32) The applicant has invited this Court to substitute the custodial sentence with probation. However, probation is a sentencing option reserved for deserving cases in which both the nature of the offence and the offender's circumstances justify rehabilitation in the community. It cannot ordinarily be considered where the offences disclose sustained violence, prolonged torture, and sexual abuse perpetrated against a vulnerable child. To accede to the applicant's request would undermine the objectives of sentencing, diminish the seriousness of the offences and fail to accord adequate protection to children, who are entitled to special protection under Article 53(2) of the Constitution of Kenya, 2010 and section 8(1) of the Children Act, 2022, both of which provide that the best interests of the child are of paramount importance in every matter concerning a child.
33) Having independently reviewed the entire record, I find no illegality, impropriety, irregularity, or error in principle committed by the learned trial magistrate. The trial court properly considered the applicant's mitigation, including that she was a first offender and remorseful, but correctly concluded that the gravity and brutality of the offences warranted a custodial sentence of deterrence. I am therefore satisfied that the sentences imposed were legal, proportionate, and commensurate with the egregious nature of the offences committed.
F. DISPOSITION
34) In the result, I find that the Notice of Motion dated 29 th November 2024 is devoid of merit. The applicant has failed to demonstrate that the impugned sentence was illegal, incorrect, improper, manifestly excessive, or founded upon a wrong principle to warrant this Court's intervention in exercise of its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code.
35) Accordingly,
i. The application is hereby dismissed. The conviction is affirmed, and the sentences of twenty-five (25) years' imprisonment on Count I and fifteen (15) years' imprisonment on Count II, to run concurrently as ordered by the trial court, are hereby upheld.
36) It is so ordered.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY 2026
CHARLES KARIUKI
JUDGE
KILGORIS HCCRREV NO. E063 OF 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL REVISION NO. E063 OF 2024
(CORAM: HON. CHARLES M. KARIUKI – J)
(Revision from Original Conviction and Sentence of Hon.W.K.Kitur(SRM) delivered on 05/10/2022 in Kilgoris MCSO NO. E041 OF 2022)
MARGARET KEMUNTO….………………………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………………………. RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This ruling concerns a Notice of Motion dated 29 th November 2024 by the applicant, Margaret Kemunto, seeking revision of the sentence imposed upon her by the Senior Principal Magistrate's Court at Kilgoris in MCSO Criminal Case No. E041 of 2022. The application is brought pursuant to the High Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code, Chapter 75 Laws of Kenya. It invokes the court's supervisory jurisdiction over subordinate courts as donated by Article 165(6) and (7) of the Constitution of Kenya, 2010.
2) The record shows that the applicant was charged with two offences, namely sexual assault contrary to section 5(1)(a)(ii) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006, and grievous harm contrary to section 234 of the Penal Code. Upon being subjected to a mental assessment, she was found fit to plead. The charges and every essential ingredient thereof were explained to her in Kiswahili, a language she understood, whereupon she unequivocally pleaded guilty to both counts. The prosecution outlined the facts, which the applicant admitted without reservation, leading the trial court to convict her on her own plea.
3) The facts disclosed exceptionally grave offences committed against a child of tender years. The applicant abducted an eight-year-old girl from her parents in Kisii County, brought her to Lolgorian, falsely represented her as her biological child, and enrolled her in school under a different name. During the period the child was in her custody, the applicant subjected her to repeated acts of physical and sexual abuse. The child was beaten on numerous occasions, burnt with hot metallic objects, including a spoon and screwdriver, assaulted with a hammer, causing injuries to her eye and fingers, and sexually assaulted through penetration with a cooking stick. The abuse only came to light after the child's head teacher noticed her deplorable condition and alerted the police, culminating in investigations, arrest, and prosecution.
4) Following the conviction, the prosecution confirmed that the applicant was a first offender. In mitigation, the applicant informed the court that she was twenty-five years old, had a family, and was remorseful. The trial court nevertheless observed that although she was a first offender, the offences committed were exceptionally heinous, particularly because they were perpetrated against a vulnerable child of six years and nine months who had been unlawfully taken away from her parents and subjected to sustained cruelty. The court found that the offences called for deterrent punishment to protect children from similar abuse and accordingly sentenced the applicant to twenty-five (25) years' imprisonment for the offence of sexual assault and fifteen (15) years' imprisonment for the offence of grievous harm, the sentences to run concurrently.
5) Dissatisfied only with the severity of the sentence and not the conviction, the applicant filed the present application seeking review of the sentence, contending that she is remorseful, has undergone rehabilitation, is a first offender, pleaded guilty, has served a substantial period in custody, and should therefore benefit from a reduced custodial sentence or a non-custodial sentence.
B. APPLICATION
i. Notice of motion
6) The applicant, Margaret Kemunto, filed a Notice of Motion dated and filed on 29 th November 2024 seeking the intervention of the High Court in the exercise of its revisionary jurisdiction under sections 361(1) and (2) of the Criminal Procedure Code and the Probation of Offenders Act. She sought, in the first instance, certification of the application as urgent and its hearing on a priority basis. Substantively, she prayed that the court review the sentence of twenty-five (25) years' imprisonment imposed upon her or, in the alternative, consider releasing her on probation or grant any other appropriate orders that the court may deem. She further sought waiver of court fees on the ground that she was an incarcerated prisoner and therefore a pauper.
7) The application was founded because the applicant had been arrested, charged, and convicted before the Senior Principal Magistrate's Court at Kilgoris in MCCR No. E041 of 2022 for the offences of sexual assault contrary to section 5(1) of the Sexual Offences Act and grievous harm contrary to section 234 of the Penal Code. She deposed that she was sentenced to twenty-five (25) years' imprisonment on the first count and fifteen (15) years' imprisonment on the second count, the sentences to run concurrently. She contended that the High Court should exercise its powers of revision and either review the custodial sentence or allow her to serve the remainder of the sentence on probation.
8) The applicant further asserted that she was a first offender who had come into conflict with the law for the first time and had learnt a painful lesson from the experience. She urged the court to exercise its inherent powers in the interests of justice, including remitting the matter for alternative dispute resolution. She also pleaded that she was the sole breadwinner of her young family, who had allegedly been left destitute and were suffering following her incarceration. On those grounds, she prayed that the sentence be reviewed, varied, or substituted with a non-custodial sentence.
ii. Supporting affidavit
9) In her supporting affidavit, sworn on the same date, the applicant reiterated that she was an adult of sound mind and competent to swear the affidavit. She repeated the circumstances of her conviction and sentencing. She affirmed that she was seeking a revision of sentence or an order permitting her to serve the remaining portion of her sentence on probation. She expressed remorse for the offences, stating that she was sorry and had learnt from her mistakes, and assured the court of her willingness to abide by any orders that it might issue.
C. SUBMISSIONS
i. Applicant’s Submissions
10) The applicant filed written submissions in support of her application for revision of sentence, urging the High Court to exercise its discretion to reduce the custodial sentence imposed by the trial court or, in the alternative, substitute it with a non-custodial sentence. She clarified at the outset that she was not challenging either her conviction or the finding of guilt. Rather, her appeal was confined to the severity of the sentence imposed following her conviction for the offences of sexual assault contrary to section 5(1) of the Sexual Offences Act and grievous harm contrary to section 234 of the Penal Code, for which she had been sentenced to twenty-five (25) years' imprisonment and fifteen (15) years' imprisonment respectively, the sentences to run concurrently.
11) The applicant submitted that the sentence imposed was excessive and implored the court to reconsider it in light of her personal circumstances. She stated that she had already served approximately four years and five months in custody. During that period, she had reflected upon her conduct, learnt valuable life lessons, and undergone rehabilitation. She expressed genuine remorse for the offences and maintained that she was ready to be reintegrated into society as a law-abiding citizen.
12) The applicant further submitted that she was a first offender with no previous criminal record and that the present case represented her first encounter with the criminal justice system. She contended that this factor ought to be treated as a mitigating circumstance warranting leniency. She also informed the court that she had pleaded guilty before the trial court, thereby saving valuable judicial time and resources. She argued that her early plea demonstrated acceptance of responsibility and should be considered in her favour during sentence review.
13) Additionally, the applicant pleaded that she was the sole breadwinner of her family and that her continued incarceration had caused hardship to those who depended on her. She assured the court that if granted the opportunity to return to the community, she would maintain good discipline, refrain from criminal conduct, and comply with any conditions the court might impose. Consequently, she prayed that the court exercise mercy by reducing her sentence or placing her on probation or another suitable non-custodial sentence.
14) The submissions did not cite or rely on any statutory provisions beyond the offences for which she had been convicted, nor did they refer to any judicial authorities or decided cases in support of the application. The applicant's plea was therefore founded entirely on mitigation, remorse, rehabilitation, her status as a first offender, the period already served in custody, her guilty plea, and her personal and family circumstances.
ii. Respondent’s Submissions
15) The respondent, through the Office of the Director of Public Prosecutions, opposed the applicant's application for revision of sentence and urged the court to dismiss it for want of merit. The respondent submitted that the applicant had been lawfully charged in Kilgoris, MCSO Criminal Case No. E041 of 2022 with the offences of sexual assault contrary to section 5(1)(a)(ii) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006, and grievous harm contrary to section 234 of the Penal Code. It was submitted that the applicant unequivocally pleaded guilty to both counts, was duly convicted on her own plea, and, after mitigation, was sentenced to twenty-five (25) years' imprisonment on the first count and fifteen (15) years' imprisonment on the second count, with the sentences ordered to run concurrently. The respondent further pointed out that the applicant had only served approximately two years of the custodial sentence when she filed the present application seeking to have the prison sentence substituted with a probation sentence.
16) The respondent submitted that although the High Court has supervisory jurisdiction over subordinate courts under Articles 50(2)(p) and (q) and 165(6) and (7) of the Constitution of Kenya, 2010, as read together with sections 362 and 364 of the Criminal Procedure Code, that jurisdiction is limited to correcting instances of illegality, incorrectness, impropriety or irregularity in the proceedings or sentence. It was argued that a revision court should not interfere with a sentence merely because another court might have imposed a different sentence, but only where the sentence is manifestly excessive, founded on wrong principles, or where the trial court overlooked material considerations.
17) To support that proposition, the respondent relied on Likanga v Republic (Criminal Revision E227 of 2025) [2025] KEHC 16642 (KLR), where Njakundi J restated the settled principles governing sentence revision and endorsed the decision of the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR. In that case, the Court of Appeal held that sentencing is a matter resting within the discretion of the trial court and that an appellate or revision court will only interfere where the sentence is manifestly excessive in the circumstances, where the trial court overlooked a material factor, took into account an irrelevant consideration, or acted on a wrong principle. The respondent also relied on the South African decision of S v Malgas 2001 (1) SACR 469 (SCA), in which the Supreme Court of Appeal held that an appellate court should not substitute its own sentence merely because it would have imposed a different one, and may only interfere where the disparity between the sentence imposed and that which ought to have been imposed is so marked that it is "shocking," "startling," or "disturbingly inappropriate."
18) On the merits, the respondent submitted that the sentence imposed on the first count was lawful and proportionate to the gravity of the offence. It was argued that section 5(2) of the Sexual Offences Act prescribes a minimum sentence of ten years' imprisonment, which may be enhanced to imprisonment for life. The respondent contended that the trial court acted well within the statutory limits in imposing a sentence of twenty-five years' imprisonment. Counsel further submitted that the admitted facts disclosed exceptionally grave circumstances. According to the prosecution, the applicant abducted a six-year-old child from her parents, changed the child's identity, and subjected her to prolonged physical and sexual abuse, including inserting a cooking stick into the child's genitalia. In those circumstances, the respondent argued that a deterrent sentence was necessary and that the sentence imposed could not be regarded as harsh or excessive.
19) Regarding the second count, the respondent submitted that section 234 of the Penal Code provides for a sentence of life imprisonment for the offence of grievous harm. It was argued that the applicant received a sentence of only fifteen years despite the appalling brutality of the assault. The prosecution submitted that the victim sustained severe injuries after being burnt with a hot spoon and screwdriver, beaten with a hammer on her fingers and eye. She was only rescued after a teacher observed her deteriorating physical condition and alerted the police. In light of the sustained violence inflicted upon a vulnerable six-year-old child, the respondent maintained that the sentence imposed reflected the seriousness of the offence and served the legitimate objectives of punishment, deterrence, and protection of children from similar abuse.
20) In conclusion, the respondent submitted that the applicant had failed to demonstrate any illegality, impropriety, irregularity, or error in principle warranting the exercise of the High Court's revisionary jurisdiction. It was therefore urged that the application be dismissed and that the sentences imposed by the trial court on both counts be upheld in their entirety.
D. ISSUES FOR DETERMINATION
21) Having carefully considered the Notice of Motion, the supporting affidavit, the rival submissions by the parties, and the record of the subordinate court, the following issues arise for determination—
i. Whether this Court has jurisdiction to entertain the application for revision of sentence.
ii. Whether the sentence imposed by the trial court was illegal, incorrect, improper, manifestly excessive, or based on a wrong principle to warrant interference in the exercise of the Court's revisionary jurisdiction.
iii. Whether the applicant has established sufficient grounds to warrant substitution of the custodial sentence with a probation or other non-custodial sentence.
E. ANALYSIS AND DETERMINATION
22) The High Court's power of revision is conferred by Article 165(6) and (7) of the Constitution of Kenya, 2010, and sections 362 and 364 of the Criminal Procedure Code . Section 362 of the Criminal Procedure Code provides that:
"The High Court may call for 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 of any such subordinate court."
23) Section 364 empowers the High Court, upon examining such a record, to make appropriate orders where illegality, incorrectness, impropriety, or irregularity is established.
24) The scope of the revisionary jurisdiction of the High Court is well settled. Revision is not an avenue through which an applicant merely dissatisfied with the severity of the sentence may invite the Court to exercise mercy or substitute the sentence with one it considers more appropriate. Rather, the jurisdiction is supervisory in nature and is confined to correcting illegalities, material irregularities, improprieties, or errors apparent on the record. This principle was succinctly stated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR , where the Court held:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, a sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist."
25) The revisionary jurisdiction of the High Court cannot be invoked merely because another court may have imposed a different sentence. Similarly, the South African Supreme Court of Appeal in S v Malgas 2001 (1) SACR 469 (SCA) held that an appellate court should not interfere with a sentence unless the disparity between the sentence imposed and that which ought to have been imposed is so marked that it can properly be described as "shocking", "startling" or "disturbingly inappropriate."
26) I have carefully examined the original proceedings before the trial court. The plea-taking process fully complied with the procedure set out in Adan v Republic [1973] EA 445 . The charges were read and explained to the applicant in Kiswahili, which she understood. She admitted both counts. The prosecution narrated the facts in detail, including the prolonged abuse inflicted upon the child. The applicant admitted those facts without qualification, whereupon she was lawfully convicted on her own unequivocal plea of guilty. There is therefore no procedural irregularity, illegality, or impropriety in either the plea-taking process or the conviction capable of invoking this Court's revisionary jurisdiction.
27) The applicant expressly states that she is not challenging her conviction but only seeks review of the sentence on account of mitigation. She relies on her status as a first offender, her guilty plea, her remorse, the period already served in prison, her rehabilitation, and her family circumstances.
28) These are undoubtedly relevant mitigating considerations. Indeed, the record demonstrates that the learned trial magistrate expressly took them into account. The court acknowledged that the applicant was a first offender and was remorseful before proceeding to sentence her. It cannot, therefore, be argued that the trial court ignored or failed to consider the mitigation placed before it. Rather, the trial court balanced those mitigating factors against the aggravating circumstances surrounding the offences.
29) The aggravating features in this case are overwhelming. The applicant abducted a vulnerable child from her lawful parents, concealed her identity, falsely claimed the child as her own, and thereafter subjected her to repeated acts of physical torture and sexual violence over an extended period. The child suffered burns inflicted using heated metallic objects, injuries occasioned by a hammer, repeated assaults, and penetration of her genitalia using a cooking stick. The abuse was persistent, deliberate, and calculated, and only came to an end because a vigilant teacher intervened. Such conduct demonstrates exceptional cruelty towards a defenceless child.
30) Sentencing serves several well-recognised objectives, including retribution, deterrence, rehabilitation, denunciation of criminal conduct, community protection, and accountability for unlawful acts. These objectives are encapsulated in the Judiciary Sentencing Policy Guidelines (2016), which require courts to impose sentences that are proportionate to both the offender and the gravity of the offence. In cases involving sexual and physical abuse of children, the objectives of deterrence, denunciation, and protection of vulnerable members of society assume particular significance. As observed by the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR, sentencing remains an exercise of judicial discretion that must be guided by the circumstances of each case and the objectives of criminal justice. Although that decision concerned the mandatory nature of the death sentence, the Supreme Court underscored the need for individualised sentencing while emphasising that courts must balance mitigating factors against the aggravating circumstances of the offence.
31) In the present case, the sentence imposed by the trial court was lawful. Section 5(2) of the Sexual Offences Act prescribes a minimum sentence of ten years' imprisonment, which may be enhanced to imprisonment for life. The sentence of twenty-five (25) years' imprisonment imposed for the offence of sexual assault, therefore, fell well within the statutory limits. Likewise, section 234 of the Penal Code provides that a person convicted of grievous harm is liable to imprisonment for life. Consequently, the sentence of fifteen (15) years' imprisonment imposed on the second count was equally lawful.
32) The applicant has invited this Court to substitute the custodial sentence with probation. However, probation is a sentencing option reserved for deserving cases in which both the nature of the offence and the offender's circumstances justify rehabilitation in the community. It cannot ordinarily be considered where the offences disclose sustained violence, prolonged torture, and sexual abuse perpetrated against a vulnerable child. To accede to the applicant's request would undermine the objectives of sentencing, diminish the seriousness of the offences and fail to accord adequate protection to children, who are entitled to special protection under Article 53(2) of the Constitution of Kenya, 2010 and section 8(1) of the Children Act, 2022, both of which provide that the best interests of the child are of paramount importance in every matter concerning a child.
33) Having independently reviewed the entire record, I find no illegality, impropriety, irregularity, or error in principle committed by the learned trial magistrate. The trial court properly considered the applicant's mitigation, including that she was a first offender and remorseful, but correctly concluded that the gravity and brutality of the offences warranted a custodial sentence of deterrence. I am therefore satisfied that the sentences imposed were legal, proportionate, and commensurate with the egregious nature of the offences committed.
F. DISPOSITION
34) In the result, I find that the Notice of Motion dated 29 th November 2024 is devoid of merit. The applicant has failed to demonstrate that the impugned sentence was illegal, incorrect, improper, manifestly excessive, or founded upon a wrong principle to warrant this Court's intervention in exercise of its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code.
35) Accordingly,
i. The application is hereby dismissed. The conviction is affirmed, and the sentences of twenty-five (25) years' imprisonment on Count I and fifteen (15) years' imprisonment on Count II, to run concurrently as ordered by the trial court, are hereby upheld.
36) It is so ordered.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 3RD DAY OF JULY 2026
CHARLES KARIUKI
JUDGE
KILGORIS HCCRREV NO. E063 OF 2024 Page 2 of 2