[1] Before the lower court, Fredrick Onyango Otieno (hereinafter, “the respondent”), was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. It was alleged that on the 6 th day of June 2021 at Sibuoche Village in Ndhiwa Sub-County within Homa Bay County, he intentionally caused his penis to penetrate the vagina of J A T, a child then aged 16 years. In the alternative, he was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act, for having rubbed his penis on the vagina of the minor aforementioned.
[2] The respondent denied the allegations and, upon trial of the facts, he was found guilty and convicted of the substantive charge of defilement. The sentencing hearing was fixed for 10 th November 2022; and upon considering the pertinent facts, including the age of the offender as well as the recommendations made in the Pre-Sentence Report filed by the Probation and Aftercare Service, the learned trial magistrate sentenced the respondent to 5 years’ imprisonment. The learned magistrate further ordered that:
“After serving the jail term, he will serve 5 years’ probation.”
[3] It was brought to the attention of the Court, vide a letter dated 9 th March 2026 from the Head of Station/Principal Magistrate, Ndhiwa Law Courts, that the respondent has since served his jail term and was due for release on 10 th March 2026; and that the Probation Officer concerned had pointed out the anomaly in respect of the probation term as the respondent could only be placed on probation for a maximum period of three years. Accordingly, the file was placed before this Court for revision, pursuant to its supervisory jurisdiction under Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[4] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records 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 ."
[5] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in 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 ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[6] Indeed, Section 5(1) of the Probation of Offenders Act, Cap 64 of the Laws of Kenya, is explicit that:
(1) A probation order shall have effect for such period, of not less than six months and of not more than three years, from the date of the order as may be specified therein, and shall require the probationer to submit during that period to the supervision of a probation officer appointed for or assigned to the district or area in which the probationer will reside after the making of the order, and shall contain such provisions as the court considers necessary for securing the supervision of the offender, and such additional conditions as to residence and other matters as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition of the same offence or the commission of other offences.
[7] In the premises, the order of the lower court dated 10 th November 2022 placing the respondent on probation for 5 years is illegal. It is hereby set aside and substituted with a period of 3 years to be reckoned from the date of the respondent’s release from prison.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 18 TH DAY OF MARCH 2026
[2] The respondent denied the allegations and, upon trial of the facts, he was found guilty and convicted of the substantive charge of defilement. The sentencing hearing was fixed for 10 th November 2022; and upon considering the pertinent facts, including the age of the offender as well as the recommendations made in the Pre-Sentence Report filed by the Probation and Aftercare Service, the learned trial magistrate sentenced the respondent to 5 years’ imprisonment. The learned magistrate further ordered that:
“After serving the jail term, he will serve 5 years’ probation.”
[3] It was brought to the attention of the Court, vide a letter dated 9 th March 2026 from the Head of Station/Principal Magistrate, Ndhiwa Law Courts, that the respondent has since served his jail term and was due for release on 10 th March 2026; and that the Probation Officer concerned had pointed out the anomaly in respect of the probation term as the respondent could only be placed on probation for a maximum period of three years. Accordingly, the file was placed before this Court for revision, pursuant to its supervisory jurisdiction under Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[4] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records 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 ."
[5] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in 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 ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[6] Indeed, Section 5(1) of the Probation of Offenders Act, Cap 64 of the Laws of Kenya, is explicit that:
(1) A probation order shall have effect for such period, of not less than six months and of not more than three years, from the date of the order as may be specified therein, and shall require the probationer to submit during that period to the supervision of a probation officer appointed for or assigned to the district or area in which the probationer will reside after the making of the order, and shall contain such provisions as the court considers necessary for securing the supervision of the offender, and such additional conditions as to residence and other matters as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition of the same offence or the commission of other offences.
[7] In the premises, the order of the lower court dated 10 th November 2022 placing the respondent on probation for 5 years is illegal. It is hereby set aside and substituted with a period of 3 years to be reckoned from the date of the respondent’s release from prison.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 18 TH DAY OF MARCH 2026