1. The Applicant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, Act No 3 of 2006. The particulars of the offence were that on 1st May 2019 at 1600hrs at Magodi village, Mivumoni Location, Kwale County, he intentionally and unlawfully caused his penis to penetrate the vagina of Sera Mumbua, a child aged 11 years.
2. On being arraigned in court, the Applicant’s plea-taking was deferred as his age had to be assessed as it wasn’t clear if he was an adult or not. An age assessment was done. He was found to be 21. When the charges were read to him, he pleaded not guilty, and the matter was heard on merit. The trial magistrate found him guilty and sentenced him to a term of 33 years with no option of a fine.
3. The Applicant was aggrieved with the decision and appealed to the High Court. The High Court considered his appeal on merit and found no reason to interfere with the conviction. The Court, however, considered the Applicant's relative youth and reviewed his sentence to 20 years from the date of the judgment.
4. Vide the instant application, he seeks to have the sentence revised. He stated in his application that he was a minor at the time he committed the offence and that mitigating factors justify the revision of his sentence.
5. I heard the application on 24th June 2024. In his very brief submissions, Mr Mwavadu urged that I be lenient as he was below 18 years old when he defiled the victim. He claimed that he had no father or mother and was apprehensive about his siblings' living conditions. The Applicant argued that he had reformed and would not be an offender again.
6. The Application was opposed by the Director of Public Prosecutions. Ms Mwaura learned counsel representing the Directorate of Public Prosecutions, submitted that the offence the Applicant was charged with attracts a mandatory life sentence under the Sexual Offices Act. The trial court, however, meted out a sentence of 33 years, which sentence was reduced to 20 years upon appeal. Learned counsel further submitted that the Applicant relied on similar grounds during the appeal hearing and that he had not presented anything new. Ms Mwaura stated that sexual offences were prevalent in Kwale and that the court was right to mete out the sentence in question.
7. The revisionary powers of the High Court are set out in sections 362 and 364 of the Penal Code. When exercising the revisionary jurisdiction, the High Court may exercise appellate powers conferred by sections 354, 357 and 358 of the Penal Code, alter or revise any order, other than an acquittal and stay orders regarding bail made in respect of certain specified offences.
8. I have looked at the decision of the trial court and also that made by her Ladyship Justice Anne Ong’injo. It is apparent that the Court considered all the grounds that the Applicant relied upon during his submission in the instant matter and that he has not presented anything new. In the circumstances, I am not convinced that there is justification for revising his sentence.
9. I find and hold that the application has no merit. The same is dismissed.
Orders accordingly.
Dated and signed at Mombasa this 5th day of July 2024. Delivered virtually via Microsoft TEAMS.
2. On being arraigned in court, the Applicant’s plea-taking was deferred as his age had to be assessed as it wasn’t clear if he was an adult or not. An age assessment was done. He was found to be 21. When the charges were read to him, he pleaded not guilty, and the matter was heard on merit. The trial magistrate found him guilty and sentenced him to a term of 33 years with no option of a fine.
3. The Applicant was aggrieved with the decision and appealed to the High Court. The High Court considered his appeal on merit and found no reason to interfere with the conviction. The Court, however, considered the Applicant's relative youth and reviewed his sentence to 20 years from the date of the judgment.
4. Vide the instant application, he seeks to have the sentence revised. He stated in his application that he was a minor at the time he committed the offence and that mitigating factors justify the revision of his sentence.
5. I heard the application on 24th June 2024. In his very brief submissions, Mr Mwavadu urged that I be lenient as he was below 18 years old when he defiled the victim. He claimed that he had no father or mother and was apprehensive about his siblings' living conditions. The Applicant argued that he had reformed and would not be an offender again.
6. The Application was opposed by the Director of Public Prosecutions. Ms Mwaura learned counsel representing the Directorate of Public Prosecutions, submitted that the offence the Applicant was charged with attracts a mandatory life sentence under the Sexual Offices Act. The trial court, however, meted out a sentence of 33 years, which sentence was reduced to 20 years upon appeal. Learned counsel further submitted that the Applicant relied on similar grounds during the appeal hearing and that he had not presented anything new. Ms Mwaura stated that sexual offences were prevalent in Kwale and that the court was right to mete out the sentence in question.
7. The revisionary powers of the High Court are set out in sections 362 and 364 of the Penal Code. When exercising the revisionary jurisdiction, the High Court may exercise appellate powers conferred by sections 354, 357 and 358 of the Penal Code, alter or revise any order, other than an acquittal and stay orders regarding bail made in respect of certain specified offences.
8. I have looked at the decision of the trial court and also that made by her Ladyship Justice Anne Ong’injo. It is apparent that the Court considered all the grounds that the Applicant relied upon during his submission in the instant matter and that he has not presented anything new. In the circumstances, I am not convinced that there is justification for revising his sentence.
9. I find and hold that the application has no merit. The same is dismissed.
Orders accordingly.
Dated and signed at Mombasa this 5th day of July 2024. Delivered virtually via Microsoft TEAMS.