RULING
(Revision of sentence from Mombasa Court of Appeal Criminal Appeal No. 77 of 2022 emanating from Mombasa HCCRA No. 102 of 2017 arising from the original conviction in Mombasa Criminal Case No. 1234 of 2015)
The Notice of Motion dated 10th April 2025 before this Court was prepared and filed by the Applicant pursuant to Section 364(1)(b) of the Criminal Procedure Code. Through the said application, the Applicant seeks orders that this Court considers the period spent in pre-conviction custody and further prays to be placed on probation.
The Applicant was charged, tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment by the trial court. Being dissatisfied, he lodged Mombasa High Court Criminal Appeal No. 102 of 2017 , which was dismissed. He subsequently appealed to the Court of Appeal in Mombasa Court of Appeal Criminal Appeal No. 77 of 2022 , wherein on 27th October 2023 , the Court of Appeal set aside the sentence of life imprisonment and substituted it with a sentence of fifteen (15) years’ imprisonment , to run from the date of sentence by the trial court, being 4th July 2017 .
The Applicant now urges this Court to factor in the period allegedly spent in pre-conviction custody and further consider placing him under probation. I have carefully considered the application, the supporting affidavit, the Applicant’s written submissions on record, and the applicable law.
The sole issue for determination is whether the application has merit and, if so, what orders this Court should grant.
This Court is mandated to consider the period an accused person spent in custody during trial pursuant to Section 333(2) of the Criminal Procedure Code (Cap 75, Laws of Kenya) . The said provision states:
“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.”
Further guidance is found in Clauses 7.10 and 7.11 of the Judiciary Sentencing Policy Guidelines , which emphasize that failure to take into account time spent in custody may result in excessive punishment and violate the principle of proportionality.
The Court of Appeal reaffirmed this principle in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR , holding that sentencing courts must expressly take into account the period spent in custody.
I have perused the trial court record. The Applicant was first arraigned in court on 26th October 2017 . He was released on bond after meeting the bond terms and remained on bond throughout the trial. He was only taken into custody upon conviction and sentencing. Consequently, there is no pre-conviction custodial period to be factored into the sentence under Section 333(2) of the Criminal Procedure Code. I therefore find no basis upon which to interfere with the sentence on that ground.
The Applicant further seeks to be placed on probation. Section 4 of the Probation of Offenders Act provides as follows:
“4. Power of court to permit conditional release of offenders. (1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that… it is expedient to release the offender on probation… (2) Where any person is convicted of an offence by the High Court and the court is of the opinion that… it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order…”
In Kimutai v Republic (2024) KEHC 6871 (KLR) , the Court outlined the considerations relevant in determining whether to impose a custodial or non-custodial sentence, including the gravity of the offence, the offender’s criminal history, character, protection of the community, and responsibility to third parties.
Further, in Republic v Felix Madalitso Keke, Confirmation Appeal No. 404 of 2010 (unreported) , the Court emphasized that sentencing must balance deterrence, reformation, rehabilitation, and public interest, while avoiding cruel, degrading, or inhuman punishment.
From the outset, the offence herein is not a misdemeanor . The Applicant was convicted of defilement of a minor aged nine (9) years , an offence of extreme gravity. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged eleven (11) years or less.
The Court of Appeal, in its appellate discretion, reduced the sentence to fifteen (15) years’ imprisonment. Guided by the reasoning in Gichuki v Republic , this Court observes that appellate courts retain the jurisdiction to enhance sentences where the circumstances so warrant, particularly where the statutory sentence has not been imposed and the offence is grave.
This Court, sitting in revision, lacks jurisdiction to review, alter, or substitute a lawful sentence imposed by the Court of Appeal. It would be improper and contrary to law to convert such a custodial sentence into a non-custodial one.
Considering the gravity of the offence, the age of the victim, the statutory sentencing framework, and the need to protect the community, I am not persuaded that this is a suitable case for probation or any form of non-custodial sentence.
Accordingly, I find that the application lacks merit and the same is hereby dismissed . In the present case, the Applicant was fortunate that the Court did not warn him and take oral evidence or submissions on enhancement of the sentence , otherwise I if I had the jurisdiction , I would have enhanced the sentence to life imprisonment , because of the tender age of the victim and the seriousness of the offence.
THE application is dismissed.
File closed.
It os so ordered.
DELIVERED, DATED and SIGNED at MOMBASA this 18 TH day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI JUDGE
In the presence of: Applicant – Present with MR ASIGE ADVOCATEState Counsel – Present MR NGIRI AND MR SIRIMA
COURT ASSISTANT; BEBORA
i
(Revision of sentence from Mombasa Court of Appeal Criminal Appeal No. 77 of 2022 emanating from Mombasa HCCRA No. 102 of 2017 arising from the original conviction in Mombasa Criminal Case No. 1234 of 2015)
The Notice of Motion dated 10th April 2025 before this Court was prepared and filed by the Applicant pursuant to Section 364(1)(b) of the Criminal Procedure Code. Through the said application, the Applicant seeks orders that this Court considers the period spent in pre-conviction custody and further prays to be placed on probation.
The Applicant was charged, tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment by the trial court. Being dissatisfied, he lodged Mombasa High Court Criminal Appeal No. 102 of 2017 , which was dismissed. He subsequently appealed to the Court of Appeal in Mombasa Court of Appeal Criminal Appeal No. 77 of 2022 , wherein on 27th October 2023 , the Court of Appeal set aside the sentence of life imprisonment and substituted it with a sentence of fifteen (15) years’ imprisonment , to run from the date of sentence by the trial court, being 4th July 2017 .
The Applicant now urges this Court to factor in the period allegedly spent in pre-conviction custody and further consider placing him under probation. I have carefully considered the application, the supporting affidavit, the Applicant’s written submissions on record, and the applicable law.
The sole issue for determination is whether the application has merit and, if so, what orders this Court should grant.
This Court is mandated to consider the period an accused person spent in custody during trial pursuant to Section 333(2) of the Criminal Procedure Code (Cap 75, Laws of Kenya) . The said provision states:
“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.”
Further guidance is found in Clauses 7.10 and 7.11 of the Judiciary Sentencing Policy Guidelines , which emphasize that failure to take into account time spent in custody may result in excessive punishment and violate the principle of proportionality.
The Court of Appeal reaffirmed this principle in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR , holding that sentencing courts must expressly take into account the period spent in custody.
I have perused the trial court record. The Applicant was first arraigned in court on 26th October 2017 . He was released on bond after meeting the bond terms and remained on bond throughout the trial. He was only taken into custody upon conviction and sentencing. Consequently, there is no pre-conviction custodial period to be factored into the sentence under Section 333(2) of the Criminal Procedure Code. I therefore find no basis upon which to interfere with the sentence on that ground.
The Applicant further seeks to be placed on probation. Section 4 of the Probation of Offenders Act provides as follows:
“4. Power of court to permit conditional release of offenders. (1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that… it is expedient to release the offender on probation… (2) Where any person is convicted of an offence by the High Court and the court is of the opinion that… it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order…”
In Kimutai v Republic (2024) KEHC 6871 (KLR) , the Court outlined the considerations relevant in determining whether to impose a custodial or non-custodial sentence, including the gravity of the offence, the offender’s criminal history, character, protection of the community, and responsibility to third parties.
Further, in Republic v Felix Madalitso Keke, Confirmation Appeal No. 404 of 2010 (unreported) , the Court emphasized that sentencing must balance deterrence, reformation, rehabilitation, and public interest, while avoiding cruel, degrading, or inhuman punishment.
From the outset, the offence herein is not a misdemeanor . The Applicant was convicted of defilement of a minor aged nine (9) years , an offence of extreme gravity. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged eleven (11) years or less.
The Court of Appeal, in its appellate discretion, reduced the sentence to fifteen (15) years’ imprisonment. Guided by the reasoning in Gichuki v Republic , this Court observes that appellate courts retain the jurisdiction to enhance sentences where the circumstances so warrant, particularly where the statutory sentence has not been imposed and the offence is grave.
This Court, sitting in revision, lacks jurisdiction to review, alter, or substitute a lawful sentence imposed by the Court of Appeal. It would be improper and contrary to law to convert such a custodial sentence into a non-custodial one.
Considering the gravity of the offence, the age of the victim, the statutory sentencing framework, and the need to protect the community, I am not persuaded that this is a suitable case for probation or any form of non-custodial sentence.
Accordingly, I find that the application lacks merit and the same is hereby dismissed . In the present case, the Applicant was fortunate that the Court did not warn him and take oral evidence or submissions on enhancement of the sentence , otherwise I if I had the jurisdiction , I would have enhanced the sentence to life imprisonment , because of the tender age of the victim and the seriousness of the offence.
THE application is dismissed.
File closed.
It os so ordered.
DELIVERED, DATED and SIGNED at MOMBASA this 18 TH day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI JUDGE
In the presence of: Applicant – Present with MR ASIGE ADVOCATEState Counsel – Present MR NGIRI AND MR SIRIMA
COURT ASSISTANT; BEBORA
i