1. The Applicant herein, vide his undated notice of motion seeks an order for the review of his sentence, so that he be placed on a probation or community service orders sentence.
2. The Applicant bases his application on the assertion that he has shown genuine remorse for his past conduct and has made substantial progress in his rehabilitation. He further avers that he was a student at Awasi PAG High School at the time of his arraignment and seeks to complete his education. Additionally, he states that he has already served over five years of his sentence, with less than three years remaining.
3. In his supporting affidavit, the Applicant reiterates the above grounds upon which his application is based.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was convicted and sentenced to ten (10) years’ imprisonment for the offence of sexual assault contrary to Section 5(1)(a) of the Sexual Offences Act by the Senior Principal Magistrate’s Court at Nyando in original case No. 311/2020.
5. Counsel states that the sentence imposed by the trial court represents the statutory minimum penalty under Section 5(2) of the Sexual Offences Act, which mandates imprisonment of no less than ten years for a conviction under this provision.
6. Ms. Muema highlights that there is no record of the Applicant having filed a formal appeal against the conviction or sentence. She contends that the relief sought is legally untenable, as substituting the sentence with probation or community service would contravene the statutory minimum prescribed by the Sexual Offences Act, making such a request unlawful.
7. The learned Prosecution Counsel emphasizes that the sentence imposed is lawful and proportionate to the gravity of the offence, reflecting the legislature’s intention to punish sexual offences severely.
8. Ms. Muema further notes that the Applicant cannot rely on the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to bypass the statutory minimum or substitute a final, lawful sentence, especially after failing to use the formal appellate process.
9. In conclusion, the State asserts that the Application is misconceived, seeks reliefs expressly prohibited by law and prays that the Court dismiss the Application in its entirety.
10. The parties herein relied on their respective affidavits in addressing the application.
11. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, three issues arise for determination.
12. The first issue for determination is whether the Applicant, having failed to file a formal appeal against his conviction or sentence, can validly invoke the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to seek a reduction or substitution of his sentence.
13. The second issue for determination is whether the personal circumstances advanced by the Applicant, namely, genuine remorse, rehabilitation, the need to further his education and the portion of the sentence already served, constitute sufficient legal grounds for the Court to modify a lawful sentence.
14. The third issue for determination is whether the Court has jurisdiction to impose a sentence that is lower than the statutory minimum of ten (10) years prescribed under Section 5(2) of the Sexual Offences Act and whether such relief can lawfully be granted.
15. I will proceed to address the three issues seriatim.
16. On the first issue, whether the Applicant can invoke the High Court’s revisionary powers under Sections 361–364 of the Criminal Procedure Code having failed to appeal within the prescribed period, the law is settled that those powers are not a substitute for a formal appeal.
17. Sections 361 and 362 permit the High Court to call for records of proceedings in subordinate courts and to examine them where there may have been an error of law or procedural irregularity; Sections 363 and 364 allow the High Court, upon finding an illegality or material irregularity, to make such orders as it deems just.
18. Importantly, however, Section 364 expressly limits the exercise of revisionary jurisdiction so that it does not become an appeal in disguise.
19. In this case, the Applicant has not demonstrated any illegality or procedural defect in the trial court’s proceedings and therefore there is no basis to invoke revisionary jurisdiction to review a lawful sentence simply because no appeal was filed.
20. On the second issue, whether the Applicant’s personal circumstances including remorse, rehabilitation, education status and the time already served, can justify modification of a lawful sentence, it is equally clear that these factors, without more, are considerations of mercy and do not, in themselves, provide a legal basis for judicial interference with a sentence that is validly imposed.
21. While remorse and rehabilitation are relevant to sentencing generally, these matters cannot be used to circumvent statutory provisions that prescribe minimum penalties, nor can they be conflated with jurisdictional errors that would activate the High Court’s revisionary powers.
22. On the third issue, whether the Court may impose a sentence lower than the statutory minimum of ten (10) years prescribed under Section 5(2) of the Sexual Offences Act, the jurisprudence arising from the Supreme Court’s directions in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) (commonly referred to as Muruatetu II) is instructive.
23. In Muruatetu II, the Supreme Court clarified that its earlier decision in Muruatetu I, which dealt specifically with the mandatory death penalty for murder under Sections 203 and 204 of the Penal Code, does not render all statutory mandatory or minimum sentences unconstitutional.
24. The Supreme Court made clear that Muruatetu II applies only to the mandatory death sentence in murder cases and that provisions in other statutes prescribing mandatory or minimum sentences remain valid unless successfully challenged through a proper constitutional petition and appellate process.
25. Accordingly, the mere fact that a statute prescribes a minimum sentence does not, without more, render it susceptible to reduction on grounds of proportionality alone outside the proper channels. Until such a statutory minimum is declared unconstitutional following full argument in appropriate proceedings, courts are bound to respect Parliament’s sentencing scheme.
26. Applying these principles to the facts of this case, the trial court imposed a ten year sentence that conforms with the statutory minimum under Section 5(2) of the Sexual Offences Act. There is no basis to disturb that sentence through revisionary jurisdiction. Personal circumstances do not provide a legal ground to override statutory minima, and Muruatetu II confirms that mandatory minimum sentences in statutes other than those dealing with the death penalty for murder remain constitutionally valid and enforceable.
27. For these reasons, the Court finds that: (a) the Applicant cannot, in the absence of a timely appeal and evidence of illegality or material procedural irregularity, invoke Sections 361–364 of the Criminal Procedure Code to review his sentence; (b) his personal circumstances do not constitute legal grounds to interfere with a lawful sentence; and (c) the Court has no jurisdiction to impose a sentence below the statutory minimum prescribed by the Sexual Offences Act.
28. In the circumstances, I am persuaded by the Respondent’s position that the Applicant’s motion lacks merit. I hereby proceed to dismiss it.
29. It is so ordered.
30. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The Applicant bases his application on the assertion that he has shown genuine remorse for his past conduct and has made substantial progress in his rehabilitation. He further avers that he was a student at Awasi PAG High School at the time of his arraignment and seeks to complete his education. Additionally, he states that he has already served over five years of his sentence, with less than three years remaining.
3. In his supporting affidavit, the Applicant reiterates the above grounds upon which his application is based.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was convicted and sentenced to ten (10) years’ imprisonment for the offence of sexual assault contrary to Section 5(1)(a) of the Sexual Offences Act by the Senior Principal Magistrate’s Court at Nyando in original case No. 311/2020.
5. Counsel states that the sentence imposed by the trial court represents the statutory minimum penalty under Section 5(2) of the Sexual Offences Act, which mandates imprisonment of no less than ten years for a conviction under this provision.
6. Ms. Muema highlights that there is no record of the Applicant having filed a formal appeal against the conviction or sentence. She contends that the relief sought is legally untenable, as substituting the sentence with probation or community service would contravene the statutory minimum prescribed by the Sexual Offences Act, making such a request unlawful.
7. The learned Prosecution Counsel emphasizes that the sentence imposed is lawful and proportionate to the gravity of the offence, reflecting the legislature’s intention to punish sexual offences severely.
8. Ms. Muema further notes that the Applicant cannot rely on the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to bypass the statutory minimum or substitute a final, lawful sentence, especially after failing to use the formal appellate process.
9. In conclusion, the State asserts that the Application is misconceived, seeks reliefs expressly prohibited by law and prays that the Court dismiss the Application in its entirety.
10. The parties herein relied on their respective affidavits in addressing the application.
11. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, three issues arise for determination.
12. The first issue for determination is whether the Applicant, having failed to file a formal appeal against his conviction or sentence, can validly invoke the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to seek a reduction or substitution of his sentence.
13. The second issue for determination is whether the personal circumstances advanced by the Applicant, namely, genuine remorse, rehabilitation, the need to further his education and the portion of the sentence already served, constitute sufficient legal grounds for the Court to modify a lawful sentence.
14. The third issue for determination is whether the Court has jurisdiction to impose a sentence that is lower than the statutory minimum of ten (10) years prescribed under Section 5(2) of the Sexual Offences Act and whether such relief can lawfully be granted.
15. I will proceed to address the three issues seriatim.
16. On the first issue, whether the Applicant can invoke the High Court’s revisionary powers under Sections 361–364 of the Criminal Procedure Code having failed to appeal within the prescribed period, the law is settled that those powers are not a substitute for a formal appeal.
17. Sections 361 and 362 permit the High Court to call for records of proceedings in subordinate courts and to examine them where there may have been an error of law or procedural irregularity; Sections 363 and 364 allow the High Court, upon finding an illegality or material irregularity, to make such orders as it deems just.
18. Importantly, however, Section 364 expressly limits the exercise of revisionary jurisdiction so that it does not become an appeal in disguise.
19. In this case, the Applicant has not demonstrated any illegality or procedural defect in the trial court’s proceedings and therefore there is no basis to invoke revisionary jurisdiction to review a lawful sentence simply because no appeal was filed.
20. On the second issue, whether the Applicant’s personal circumstances including remorse, rehabilitation, education status and the time already served, can justify modification of a lawful sentence, it is equally clear that these factors, without more, are considerations of mercy and do not, in themselves, provide a legal basis for judicial interference with a sentence that is validly imposed.
21. While remorse and rehabilitation are relevant to sentencing generally, these matters cannot be used to circumvent statutory provisions that prescribe minimum penalties, nor can they be conflated with jurisdictional errors that would activate the High Court’s revisionary powers.
22. On the third issue, whether the Court may impose a sentence lower than the statutory minimum of ten (10) years prescribed under Section 5(2) of the Sexual Offences Act, the jurisprudence arising from the Supreme Court’s directions in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) (commonly referred to as Muruatetu II) is instructive.
23. In Muruatetu II, the Supreme Court clarified that its earlier decision in Muruatetu I, which dealt specifically with the mandatory death penalty for murder under Sections 203 and 204 of the Penal Code, does not render all statutory mandatory or minimum sentences unconstitutional.
24. The Supreme Court made clear that Muruatetu II applies only to the mandatory death sentence in murder cases and that provisions in other statutes prescribing mandatory or minimum sentences remain valid unless successfully challenged through a proper constitutional petition and appellate process.
25. Accordingly, the mere fact that a statute prescribes a minimum sentence does not, without more, render it susceptible to reduction on grounds of proportionality alone outside the proper channels. Until such a statutory minimum is declared unconstitutional following full argument in appropriate proceedings, courts are bound to respect Parliament’s sentencing scheme.
26. Applying these principles to the facts of this case, the trial court imposed a ten year sentence that conforms with the statutory minimum under Section 5(2) of the Sexual Offences Act. There is no basis to disturb that sentence through revisionary jurisdiction. Personal circumstances do not provide a legal ground to override statutory minima, and Muruatetu II confirms that mandatory minimum sentences in statutes other than those dealing with the death penalty for murder remain constitutionally valid and enforceable.
27. For these reasons, the Court finds that: (a) the Applicant cannot, in the absence of a timely appeal and evidence of illegality or material procedural irregularity, invoke Sections 361–364 of the Criminal Procedure Code to review his sentence; (b) his personal circumstances do not constitute legal grounds to interfere with a lawful sentence; and (c) the Court has no jurisdiction to impose a sentence below the statutory minimum prescribed by the Sexual Offences Act.
28. In the circumstances, I am persuaded by the Respondent’s position that the Applicant’s motion lacks merit. I hereby proceed to dismiss it.
29. It is so ordered.
30. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.