1. The applicant was charged with the offence of rape contrary to section 3(1) as read with section 3(3) of the Sexual Offences Act, No. 3 of 2006. He faced the alternative charge of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act, No. 3 of 2006. The applicant pleaded not guilty to both counts. Consequently, the matter was heard on merit by the trial court.
2. The trial Court in its judgment, observed that:-
“I am satisfied that it is the accused person who went into the complainants’ house, pushed him inside, removed his underwear, then forced his penis to penetrate the anus of PW1. He did not obtain the complaint’s consent at all. He never sought it. He forcefully raped the Complaint after threatening and warning him of due consequences should he scream…”
3. The trial court considered the mitigation of the applicant. In the sentence notes, the court stated:-
“the offence is serious. Deterrence is called for to discourage other like-minded individuals. I, therefore, sentence the accused to 20 years imprisonment.”
4. The applicant was aggrieved by the trial Court\'s decision and filed an appeal. Upon considering his appeal, the High Court upheld the sentence. Regarding compliance with section 333(2) of the Criminal Procedure Code, the High Court noted that the applicant had been out on bail pending trial and found that the said section was inapplicable. The Court thus dismissed the appeal in its entirety.
5. The applicant did not file a further appeal. However, vide an undated revision application filed on 5th February 2024, he sought to have his sentence revised/revised on the ground that Odunga, J (as he then was) in Machakos High Court Constitutional Petition No E017 of 2021; Philip Mueke Maingi & 5 others –vs- Republic had held that Courts had the discretion to impose a sentence that befits the offence committed upon hearing the mitigation of the accused persons.
6. In paragraph 118 of the said decision, Odunga, J held as follows:-
“Having considered the issues raised in this Petition, the orders that commend themselves to me, and which I hereby grant are as follows:- To the extent the Sexual Offences Act prescribes minimum mandatory sentence with no discretion to the trial Court to determine the appropriate sentence to impose such sentence falls foul of Article 28 of the Constitution.
However, the Courts are at Liberty to impose sentence prescribed thereunder as long as the same is not deemed to be the mandatory minimum prescribed sentence.”
7. In his application, the applicant submitted that he is a first offender, had reformed while in custody, was a sole breadwinner for his family, apologized to the victim, and learned tailoring while in prison, which would enable him to be a useful member of society.
8. The application was canvassed in open Court on 25th June 2024. Mr. Mafunzi relied on his written submissions and pleaded for a sentence reduction. He urged that he is the firstborn in his family and the breadwinner. He stated that if his sentence was reviewed, he would not engage in crime again.
9. The state opposed the revision application. Ms Mwaura for the state urged that the applicant, dissatisfied with the trial Court\'s decision, filed an appeal against the decision. The appeal was dismissed. Ms Mwaura stated that the appellate Court took into account all the issues raised by the applicant and then the appellant and arrived at a very well-considered decision. I was thus urged not to interfere with the sentence.
10. I must state at the outset that I am not sitting on appeal over the decision of my sister, Lady Justice Njoki Mwangi, nor could I purport to. Further, I note that the appellate Court considered the provision of section 333(2) of the Civil Procedure Act. Mine is to consider whether there are lawful grounds to disturb the sentence of the trial Court in the exercise of my revision jurisdiction.
11. This Court’s revision jurisdiction is found in section 362 of the Criminal Procedure Code. The said section states that:-
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
12. The orders that the High Court may issue when exercising revision jurisdiction are listed in Section 364 of the Criminal Procedure Code. The said section provides that:-
“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296 (2) of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti- Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict greater punishment for the offence which, in the opinion of the High Court, the accused has committed than might have been inflicted by the court which imposed the sentence.
(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
13. In Joseph Nduvi Mbuvi versus Republic [2019]eKLR, Odunga, J (as he then was) stated:-
“In my considered view, the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases, whether during the pendency of the proceedings in the Sub-ordinate Courts or at the conclusion of the proceeding, to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceedings in the lower court have been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order, but it goes on to state that it is also exercisable to determine the regularity of any proceedings of any such Subordinate Court as well.”
14. I have perused the proceedings of the trial court and taken note of the judgment. From the judgment, it is apparent that the trial court considered all the relevant facts and that in passing the sentence of 20 years imprisonment, the court was alive to the applicant\'s conduct and the need for deterrence. In my view, the sentence was lawful, fair, and just. I see nothing in the sentence that could be said to be manifestly irregular and or unlawful. The decision was not grossly erroneous or non-compliant with any provision of the law. I am satisfied that the trial court\'s decision was based on the evidence adduced. The trial court considered all the material evidence. The said court also exercised its discretion properly.
15. In my view, the submissions on minimum sentences are irrelevant. The trial court, noting the nature of the offence, imposed a sentence which is twice in length the minimum sentence prescribed in the Act. It is, therefore, evident that the court was not constrained by section 3(3) of the Sexual Offences Act.
16. I note that the applicant did not raise any new grounds to warrant revising his sentence in his submissions. In the circumstances, I am unable to find merit in his application.
17. The upshot of the foregoing is that the application has no merit. The same is dismissed.
18. Orders accordingly.
Dated and signed at Mombasa this 26th day of July 2024. Delivered virtually via Microsoft TEAMS
2. The trial Court in its judgment, observed that:-
“I am satisfied that it is the accused person who went into the complainants’ house, pushed him inside, removed his underwear, then forced his penis to penetrate the anus of PW1. He did not obtain the complaint’s consent at all. He never sought it. He forcefully raped the Complaint after threatening and warning him of due consequences should he scream…”
3. The trial court considered the mitigation of the applicant. In the sentence notes, the court stated:-
“the offence is serious. Deterrence is called for to discourage other like-minded individuals. I, therefore, sentence the accused to 20 years imprisonment.”
4. The applicant was aggrieved by the trial Court\'s decision and filed an appeal. Upon considering his appeal, the High Court upheld the sentence. Regarding compliance with section 333(2) of the Criminal Procedure Code, the High Court noted that the applicant had been out on bail pending trial and found that the said section was inapplicable. The Court thus dismissed the appeal in its entirety.
5. The applicant did not file a further appeal. However, vide an undated revision application filed on 5th February 2024, he sought to have his sentence revised/revised on the ground that Odunga, J (as he then was) in Machakos High Court Constitutional Petition No E017 of 2021; Philip Mueke Maingi & 5 others –vs- Republic had held that Courts had the discretion to impose a sentence that befits the offence committed upon hearing the mitigation of the accused persons.
6. In paragraph 118 of the said decision, Odunga, J held as follows:-
“Having considered the issues raised in this Petition, the orders that commend themselves to me, and which I hereby grant are as follows:- To the extent the Sexual Offences Act prescribes minimum mandatory sentence with no discretion to the trial Court to determine the appropriate sentence to impose such sentence falls foul of Article 28 of the Constitution.
However, the Courts are at Liberty to impose sentence prescribed thereunder as long as the same is not deemed to be the mandatory minimum prescribed sentence.”
7. In his application, the applicant submitted that he is a first offender, had reformed while in custody, was a sole breadwinner for his family, apologized to the victim, and learned tailoring while in prison, which would enable him to be a useful member of society.
8. The application was canvassed in open Court on 25th June 2024. Mr. Mafunzi relied on his written submissions and pleaded for a sentence reduction. He urged that he is the firstborn in his family and the breadwinner. He stated that if his sentence was reviewed, he would not engage in crime again.
9. The state opposed the revision application. Ms Mwaura for the state urged that the applicant, dissatisfied with the trial Court\'s decision, filed an appeal against the decision. The appeal was dismissed. Ms Mwaura stated that the appellate Court took into account all the issues raised by the applicant and then the appellant and arrived at a very well-considered decision. I was thus urged not to interfere with the sentence.
10. I must state at the outset that I am not sitting on appeal over the decision of my sister, Lady Justice Njoki Mwangi, nor could I purport to. Further, I note that the appellate Court considered the provision of section 333(2) of the Civil Procedure Act. Mine is to consider whether there are lawful grounds to disturb the sentence of the trial Court in the exercise of my revision jurisdiction.
11. This Court’s revision jurisdiction is found in section 362 of the Criminal Procedure Code. The said section states that:-
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
12. The orders that the High Court may issue when exercising revision jurisdiction are listed in Section 364 of the Criminal Procedure Code. The said section provides that:-
“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296 (2) of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti- Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict greater punishment for the offence which, in the opinion of the High Court, the accused has committed than might have been inflicted by the court which imposed the sentence.
(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
13. In Joseph Nduvi Mbuvi versus Republic [2019]eKLR, Odunga, J (as he then was) stated:-
“In my considered view, the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases, whether during the pendency of the proceedings in the Sub-ordinate Courts or at the conclusion of the proceeding, to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceedings in the lower court have been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order, but it goes on to state that it is also exercisable to determine the regularity of any proceedings of any such Subordinate Court as well.”
14. I have perused the proceedings of the trial court and taken note of the judgment. From the judgment, it is apparent that the trial court considered all the relevant facts and that in passing the sentence of 20 years imprisonment, the court was alive to the applicant\'s conduct and the need for deterrence. In my view, the sentence was lawful, fair, and just. I see nothing in the sentence that could be said to be manifestly irregular and or unlawful. The decision was not grossly erroneous or non-compliant with any provision of the law. I am satisfied that the trial court\'s decision was based on the evidence adduced. The trial court considered all the material evidence. The said court also exercised its discretion properly.
15. In my view, the submissions on minimum sentences are irrelevant. The trial court, noting the nature of the offence, imposed a sentence which is twice in length the minimum sentence prescribed in the Act. It is, therefore, evident that the court was not constrained by section 3(3) of the Sexual Offences Act.
16. I note that the applicant did not raise any new grounds to warrant revising his sentence in his submissions. In the circumstances, I am unable to find merit in his application.
17. The upshot of the foregoing is that the application has no merit. The same is dismissed.
18. Orders accordingly.
Dated and signed at Mombasa this 26th day of July 2024. Delivered virtually via Microsoft TEAMS