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JudgmentRIKO FUNDI NYUMBWE VS The Republic6 min read

RIKO FUNDI NYUMBWE VS The Republic

High Court at Kwale High Court · · Andayi W.F.

  1. This is an application for sentence review by Riko Fundi Nyumbwe. The application is undated and unsigned and the supporting affidavit although signed by way of thumb-print is also not dated and is not commissioned. However, that will not stop this court from considering the application. But I will urge the prison officers who are assisting the applicants/inmates while preparing the documents for filing in court to ensure that these basic requirements are met.
  2. The trial court file has been made available to this court and therefore I can confirm the issues raised in the application. The applicant was convicted of the offence of defilement of a child contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA) that on diverse dates of March 2022 and 8th October 2022 at Jego sub-location Lunga Lunga Sub-County within Kwale County unlawfully and intentionally caused his penis to penetrate the vagina of M.K.N a child aged 17 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the SOA that on diverse dates of March 2022 and 8th October 2022 at Jego sub-location Lunga Lunga Sub-County within Kwale County unlawfully and intentionally caused his penis to touch the vagina of M.K.N a child aged 17 years.
  3. The applicant pleaded not guilty. After full trial in which the prosecution (respondent herein) called five witnesses and the accused person (appellant herein) in defence gave sworn evidence but did not call any witnesses after being afforded an opportunity to do so, the trial court found the charge of defilement proved and convicted him accordingly. The trial court then called for a pre-sentence report and the same was made available and after considering the same, the Sentencing Policy Guidelines, the mitigation by the accused person, the fact that he was a first offender and the circumstances of the offence the court passed the minimum mandatory sentence of 15 years imprisonment that is prescribed under the law.
  4. He now applies to this court for sentence review contending that the court should consider the time he has spent in custody.
  5. The application is expressed to be brought under Article 50(2)(q) of the constitution and section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
  6. The said provisions of the law provide as follows:

Art. 50(2): Every accused person has the right to a fair trial, which includes the right — (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

Section 333(2) CPC: Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. The applicant has listed some grounds upon which he seeks the review of sentence that he has been able to acquire technical skills that can benefit his family; he is the bread winner of his family who entirely depend on him as his wife does not have a job. He prays that the court takes into account his mitigation factors in his application for review of sentence. He prays that this court grants him a non-custodial sentence.
  2. He further alleges that during sentencing the trial court did not take into account the time he had spent in remand custody.
  3. Assuming that this application would have been worth considering by this court, I would have found that the reason that he has acquired technical skills to help him earn a living for his family as advanced by the applicant is without any supporting document such as certificate awarded while in custody. All the other reasons advanced were given at the trial in mitigation and the learned trial magistrate considered all of them as per her sentence which is quite elaborate.
  4. As for the reason that that time spent in custody was not given credit, I note that he took plea on 24/10/2022 and was immediately placed in custody. He was released on bond on 7/3/2023 when his surety was approved. Therefore, he ought to get a credit of that period which is 4 months and 14 days. The learned trial magistrate indicated in her sentence that the applicant was out on bond during the duration of the trial and so his sentence would run from the date of conviction. It is apparent that the learned trial magistrate did not take into account the period the applicant had spent in remand custody prior to his being released on bond. I am aware that the High Court has given varying interpretations to this section of the law with some judges saying that the entire period must be taken into account while others say that provided the court pronounces that it has taken such period into account, there is no requirement to engage in a mathematical calculation of that period. Since sentencing is at the discretion of the sentencing court, in this case I note that the learned trial magistrate did not as much say that she had taken into account the 4½ months the applicant had remained in custody. For that reason, I will give him that credit as prayed and hold that the same ought to be subtracted from his period of imprisonment.
  5. Otherwise, as was found by the learned trial magistrate the offence of which the applicant was convicted carries a minimum mandatory sentence. Section 8(4) of the SOA provides that:

S. 8(4). 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.

  1. The learned trial magistrate imposed the said minimum mandatory sentence of 15 years imprisonment. Such a sentence cannot be reviewed downwards even by a Higher court as was recently held by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment).
  2. I wish to commend the learned trial magistrate for the diligence with which she dealt with the matter right from plea taking to delivery of sentence. This case could as well serve as a sample trial, judgment and sentencing during induction of new magistrates into the judiciary. The manner in which the learned trial magistrate dealt with the sentencing aspect is particularly commendable seeing that even in the face of a mandatory minimum sentence, she called for a pre-sentence report and considered the same in a most concise and complete manner. She considered the mitigating and aggravating circumstances of the cas, clearly outlining them in her sentence and the fact that the appellant was a first offender but that the punishment for the offence he was convicted of was a minimum mandatory sentence and following the SPG she imposed the minimum mandatory sentence of 15 years imprisonment. That sentence is in line with the law. 
  3. In the circumstances I find no merit in the application and the same is dismissed save for the fact that the period of 4½ months the applicant had spent in custody should be subtracted from his period of imprisonment.
  4. Orders accordingly.
  5. Ruling delivered, dated and signed in Open Court at Kwale and Virtual Platform, Teams this 3rd day of October 2024

In the presence of:

In person for Applicant.

Mwaura (Ms) for the Respondent.

Johnson Court Assistant.


    RIKO FUNDI NYUMBWE VS The Republic RIKO FUNDI NYUMBWE VS The Republic