1. The applicant was charged with the offence of rape contrary to sections 3 (1) & (3) of the Sexual Offences Act, No. 3 of 2006, and in the alternative, of committing an indecent act contrary to section 11(1) of the said Act.
2. As he pleaded not guilty to both charges, the case was heard on merit. Vide a judgment delivered on 24th August 2022, the Court found the applicant guilty of rape. The Court sentenced him to 10 years imprisonment. As he had been in custody for one year and seven months before the conviction, the court ordered that the time he was in remand be reckoned.
3. Section 3(3) of the said Act provides that
“a person guilty of rape shall, upon conviction, be liable to imprisonment for a term which shall not be less than ten years which may be enhanced to imprisonment for life.”
4. The sentence meted out on the applicant was thus the minimum possible sentence under the Act.
5. Vide the application dated 12th February 2024, the applicant seeks to have his sentence reviewed. In his affidavit in support of the application, the applicant averred that he is currently imprisoned in Kwale Main Prison. He prayed for a non-custodial sentence. He alleged that the trial Court did not consider the period he had been remanded and that he had acquired technical skills that would benefit his family. Further, he is a breadwinner for his family of 1 wife and 5 children, 3 of whom are currently in high school and who depend on him for school fees and personal needs as his wife has no job.
6. The application was heard in open Court on 24 June 2024. Mr Kalisho submitted that the trial court did not reckon with the period he was in remand. He further submitted that his imprisonment had caused his children to miss school.
7. The state opposed the application. Ms Mwaura, the learned counsel for the state, submitted that the sentence meted out by the Court was the minimum possible at law and that the Court below considered the period the applicant was in remand. Ms Mwaura stated that no serious mitigating factors had been provided to warrant the review of the sentence. She urged that sexual offences were prevalent in Kwale. In the circumstances, it was prayed that there was no reason to interfere with the sentence passed by the Court.
8. Has a case been made for revision of the sentences? The trial Court’s sentence notes states that:-
“I note that he has been remanded from the onset of trial, from 22nd February 2021 to date; a period of 1 year and 7 months. I will take that into consideration and remove it from the sentence. Thus, his sentence shall be 8 years and 5 months imprisonment.”
9. The applicant’s contention that his pre-conviction time in remand wasn’t considered is incorrect.
10. The foregoing notwithstanding, is his application otherwise merited?
11. This Court’s revision jurisdiction is provided 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, the court was aware of 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. Has a case been made for revision of the sentence$1 In my view, no such thing has been done. The sentence passed by the trial Court was the minimum possible for the offence of rape.
16. The Supreme Court of Kenya in Republic vs Joshua Gichuki Mwangi; Petition No E018 of 2023 the Court held as follows in paragraphs 63 to 67:-
“[63] Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
[64] The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular Section 8 that would have been relevant to the Respondent’s case.
[65] We also note that the Court of Appeal concluded its decision in this present matter by reducing the Respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court\'s decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter. 32 SC Petition No. E018 of 2023
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows: “Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government 33 SC Petition No. E018 of 2023 and expects that each will carry out those functions assigned to it without interference from the other two.” We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.”
17. The effect of the said decision is that this Court cannot pass a sentence below the minimum sentence under the statute. As the trial Court considered the period the applicant was remanded, there is no basis for interfering with the trial Court’s decision.
18. The logical effect of the foregoing is that I find the instant application to be bereft of merit. The same is dismissed.
19. Orders accordingly.
DATED and SIGNED at Mombasa this 26th day of July 2024. Delivered virtually via Microsoft TEAMS.
2. As he pleaded not guilty to both charges, the case was heard on merit. Vide a judgment delivered on 24th August 2022, the Court found the applicant guilty of rape. The Court sentenced him to 10 years imprisonment. As he had been in custody for one year and seven months before the conviction, the court ordered that the time he was in remand be reckoned.
3. Section 3(3) of the said Act provides that
“a person guilty of rape shall, upon conviction, be liable to imprisonment for a term which shall not be less than ten years which may be enhanced to imprisonment for life.”
4. The sentence meted out on the applicant was thus the minimum possible sentence under the Act.
5. Vide the application dated 12th February 2024, the applicant seeks to have his sentence reviewed. In his affidavit in support of the application, the applicant averred that he is currently imprisoned in Kwale Main Prison. He prayed for a non-custodial sentence. He alleged that the trial Court did not consider the period he had been remanded and that he had acquired technical skills that would benefit his family. Further, he is a breadwinner for his family of 1 wife and 5 children, 3 of whom are currently in high school and who depend on him for school fees and personal needs as his wife has no job.
6. The application was heard in open Court on 24 June 2024. Mr Kalisho submitted that the trial court did not reckon with the period he was in remand. He further submitted that his imprisonment had caused his children to miss school.
7. The state opposed the application. Ms Mwaura, the learned counsel for the state, submitted that the sentence meted out by the Court was the minimum possible at law and that the Court below considered the period the applicant was in remand. Ms Mwaura stated that no serious mitigating factors had been provided to warrant the review of the sentence. She urged that sexual offences were prevalent in Kwale. In the circumstances, it was prayed that there was no reason to interfere with the sentence passed by the Court.
8. Has a case been made for revision of the sentences? The trial Court’s sentence notes states that:-
“I note that he has been remanded from the onset of trial, from 22nd February 2021 to date; a period of 1 year and 7 months. I will take that into consideration and remove it from the sentence. Thus, his sentence shall be 8 years and 5 months imprisonment.”
9. The applicant’s contention that his pre-conviction time in remand wasn’t considered is incorrect.
10. The foregoing notwithstanding, is his application otherwise merited?
11. This Court’s revision jurisdiction is provided 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, the court was aware of 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. Has a case been made for revision of the sentence$1 In my view, no such thing has been done. The sentence passed by the trial Court was the minimum possible for the offence of rape.
16. The Supreme Court of Kenya in Republic vs Joshua Gichuki Mwangi; Petition No E018 of 2023 the Court held as follows in paragraphs 63 to 67:-
“[63] Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
[64] The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular Section 8 that would have been relevant to the Respondent’s case.
[65] We also note that the Court of Appeal concluded its decision in this present matter by reducing the Respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court\'s decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter. 32 SC Petition No. E018 of 2023
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows: “Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government 33 SC Petition No. E018 of 2023 and expects that each will carry out those functions assigned to it without interference from the other two.” We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.”
17. The effect of the said decision is that this Court cannot pass a sentence below the minimum sentence under the statute. As the trial Court considered the period the applicant was remanded, there is no basis for interfering with the trial Court’s decision.
18. The logical effect of the foregoing is that I find the instant application to be bereft of merit. The same is dismissed.
19. Orders accordingly.
DATED and SIGNED at Mombasa this 26th day of July 2024. Delivered virtually via Microsoft TEAMS.