'
(Arising from Mombasa High Court petition no 58 0f 2020)
The Applicant seeks a review of the sentence imposed in Criminal Mombasa High Court petition no 58 0f 2020 for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006,
1. He initially was initially sentenced to a life sentence and he lodged an appeal before the High Court, which was dismissed, thereby upholding the trial court’s sentence of life imprisonment.
Subsequently, the Applicant filed Petition No. 58 of 2019 before the High Court, where Justice Ogola partially allowed the petition and reduced the sentence from life imprisonment to twenty (20) years.
The Applicant confirms that he has no intention to lodge any further appeal and has no pending appeal before any court. He therefore seeks a review of the sentence. He states that he has six children who depend on him, and that his wife has suffered mental instability, leaving the family destitute and under the care of his elderly father.
The Applicant relies on Article 50(2)(p) of the Constitution of Kenya, 2010, which guarantees the right to benefit from the least severe of the prescribed sentences, including the right to seek review where applicable.
The Court is guided by the Supreme Court’s jurisprudence, including Republic v Joshua Gichuki Mwangi (Petition E018 of 2023), which reaffirmed the constitutionality and continued operation of mandatory minimum sentences under the Sexual Offences Act. The Supreme Court emphasized the legislative importance of minimum sentences and the need for consistency in their application. Additionally, in R v Ayako , the Supreme Court clarified that a sentence of life imprisonment means imprisonment for the natural life of the offender.
The Court further observes that it cannot review or vary a sentence imposed by another court of concurrent and equal jurisdiction. A revision mechanism cannot be invoked to reopen, disturb, or alter a sentence that has already been affirmed on appeal or varied by a court of competent jurisdiction within the judicial hierarchy.
Justice Ogola, in reducing the Applicant’s sentence to twenty (20) years, considered the Applicant’s mitigation and ordered that the sentence run from 15 September 2019, being the date when he was first arraigned.
The offences in question had severe physical, psychological, and emotional effects on the victim.
The Applicant was duly accorded a hearing as required under Section 364 of the Criminal Procedure Code.
In view of the foregoing, the application for sentence review has no legal merit and therefore cannot succeed.
ORDERS
THAT the Application for sentence review be and is hereby dismissed .
THAT the sentence of twenty (20) years imposed by Justice Ogola shall remain in force .
THAT the Applicant retains the right to pursue any lawful remedy available under the Constitution and applicable statutes.
4. If the duration remaining is less than 3 years imprisonment, he may be considered under the decongestion exercise.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27 th TH DAY OF NOVEMBER 2025.
WENDY KAGENDO
JUDGE
HIGH COURT OF KENYA, MOMBASA
In the presence of:
The Applicant in person
Mr. Sirima for the State
Ms. Bebora – Court Assistant
.
Top of Form
Bottom of Form
'
(Arising from Mombasa High Court petition no 58 0f 2020)
The Applicant seeks a review of the sentence imposed in Criminal Mombasa High Court petition no 58 0f 2020 for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006,
1. He initially was initially sentenced to a life sentence and he lodged an appeal before the High Court, which was dismissed, thereby upholding the trial court’s sentence of life imprisonment.
Subsequently, the Applicant filed Petition No. 58 of 2019 before the High Court, where Justice Ogola partially allowed the petition and reduced the sentence from life imprisonment to twenty (20) years.
The Applicant confirms that he has no intention to lodge any further appeal and has no pending appeal before any court. He therefore seeks a review of the sentence. He states that he has six children who depend on him, and that his wife has suffered mental instability, leaving the family destitute and under the care of his elderly father.
The Applicant relies on Article 50(2)(p) of the Constitution of Kenya, 2010, which guarantees the right to benefit from the least severe of the prescribed sentences, including the right to seek review where applicable.
The Court is guided by the Supreme Court’s jurisprudence, including Republic v Joshua Gichuki Mwangi (Petition E018 of 2023), which reaffirmed the constitutionality and continued operation of mandatory minimum sentences under the Sexual Offences Act. The Supreme Court emphasized the legislative importance of minimum sentences and the need for consistency in their application. Additionally, in R v Ayako , the Supreme Court clarified that a sentence of life imprisonment means imprisonment for the natural life of the offender.
The Court further observes that it cannot review or vary a sentence imposed by another court of concurrent and equal jurisdiction. A revision mechanism cannot be invoked to reopen, disturb, or alter a sentence that has already been affirmed on appeal or varied by a court of competent jurisdiction within the judicial hierarchy.
Justice Ogola, in reducing the Applicant’s sentence to twenty (20) years, considered the Applicant’s mitigation and ordered that the sentence run from 15 September 2019, being the date when he was first arraigned.
The offences in question had severe physical, psychological, and emotional effects on the victim.
The Applicant was duly accorded a hearing as required under Section 364 of the Criminal Procedure Code.
In view of the foregoing, the application for sentence review has no legal merit and therefore cannot succeed.
ORDERS
THAT the Application for sentence review be and is hereby dismissed .
THAT the sentence of twenty (20) years imposed by Justice Ogola shall remain in force .
THAT the Applicant retains the right to pursue any lawful remedy available under the Constitution and applicable statutes.
4. If the duration remaining is less than 3 years imprisonment, he may be considered under the decongestion exercise.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27 th TH DAY OF NOVEMBER 2025.
WENDY KAGENDO
JUDGE
HIGH COURT OF KENYA, MOMBASA
In the presence of:
The Applicant in person
Mr. Sirima for the State
Ms. Bebora – Court Assistant
.
Top of Form
Bottom of Form
'