CRIMINAL MISC E006 OF 2026 1
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E006 OF 2026
IN THE MATTER OF SENTENCE REVIEW UNDER SECTION 363 AND 364
OF CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF ARTICLES 50(2)(P) Q), 23(1), 165(3)(A)(B), 24(1) OF
THE CONSTITUTION
HILLARY OTIENO……………………………………………..……………..APPLICANT
VERSUS
REPUBLIC………………………………………………..………………..RESPONDENT
Coram: Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The Applicant in this case was arraigned before Court charged of defilement
contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The
particulars being that Hillary Otieno on the 9th of September 2018 at Ibona
location within Vihiga County intentionally caused his penis to penetrate the
vagina of Maritha Anono a child aged 12 years.
2. Before this Court is notice of motion dated 12th February by the Applicant
who seeks the following orders:
a. The Hon. Court be pleased to have and determine this application
b. The Applicant is before sentence to review to least punitive one that is
probation or Community Service Order
CRIMINAL MISC E006 OF 2026 2
c. That I am sorry and remorseful to the said offence.
3. The application is based on the grounds that:
a. THAT, I am the above inmate currently serving the sentence of 15 years
imprisonment in the offence of defilement contrary to Section 8(1) (2) of the
Sexual Offences Act No. 3 of 2006.
b. THAT, I am not against only praying that the sentence of 15 years
imprisonment to be substituted with the least punitive one.
c. THAT, I am sorry and remorseful to the commission of the said offence hence
plead to the honorable Court to be pleased to treat me as the first offender.
d. THAT, your lordship I have served more than 7 years now remaining with
less years to finish my term-requesting that the remaining period hon. Court
allow me to finish while outside-noncustodial sentence as I pray remorseful
and leniently.
e. THAT, I support my application in line with the sentencing policy guidelines
2.5.1 which states that, the probation of offenders Act Cap 64 Laws of
Kenya gives Court the option of placing offenders on probation. A probation
order is one which places offenders under the supervision of a probation
officer not less than 6 months and not more than 3 years to serve.
f. THAT, since my arrest and conviction, I have learnt a lot on ways that will
enhance me a lot not break any law and I promise that I will not engage
myself in any criminal activities.
g. THAT, the hon, Court to be pleased to have mercy and consider this
application for sentence view to least punitive one in order to allow me re-
arrange my life again given that at my arrest time, haven't done any
constructive development at the time.
4. In support of the application is the sworn affidavit by Hillary Otieno who
deponed as follows:
a. That I was convicted and sentenced to serve life then and later substituted
with 15 years imprisonment in the offence of defilement
CRIMINAL MISC E006 OF 2026 3
b. That I am not against only praying to the hon Court to have the sentence of
15 years to be substituted with the least one that is probation or CSO given
that am remaining with less 3 years
c. That I am sorry and remorseful to the said offence.
Decision
5. The Applicant was tried, found guilty, convicted and sentenced to life
imprisonment for the offence of defilement and 3 years for the offence of
assault. The Applicant preferred an appeal on both conviction and sentence
and in the pronouncement of the Judge she ruled as follows:
a. For the foregoing reasons, the upshot of this Court's decision was that
the Appellant's Petition of Appeal that was lodged on 22nd August 2022
which was subsequently amended on 15th November 2023 was partly
merited but only on the aspect of sentence only. His conviction on the
offence of defilement and assault be and are hereby upheld as they were
both safe.
b. It is hereby directed that the sentence of life imprisonment be and is
hereby set aside and/or vacated and replaced with an order that the
Appellant be and is hereby sentenced to fifteen (15) years imprisonment
to run from the date of his arrest on 10th September 2019.
c. For avoidance of doubt, the sentence of three (3) years in respect of the
offence of assault be and is hereby upheld with an order that it shall run
concurrently with the sentence of fifteen (15) years that was imposed on
him for the offence of defilement.
d. It is also hereby directed that the period between 10th September 2019
when the Appellant was arrested and 31st July 2022 be and is hereby
taken into account while computing his sentence as provided in Section
333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
CRIMINAL MISC E006 OF 2026 4
6. This mere application filed on Court on 12th February 2026 does not satisfy
the criteria on the Bernard Gacheru v Republic [2002] eKLR the Court held
that:
“It is now settled law, following several authorities by this Court and
by the high Court, that sentence is a matter that rests in the discretion
of the trial Court. Similarly, sentence must depend on the facts of each
case. On appeal, the appellate Court will not easily interfere with
sentence unless, the sentence is manifestly excessive in the
circumstances of the case, or that the trial Court overlooked some
material factor, or took into account some wrong material, or acted on
a wrong principle. Even if, the Appellate Court might itself not have
passed that sentence, these alone are not sufficient grounds for
interfering with the discretion of the trial Court on sentence unless,
anyone of the matters already states is shown to exist.”
7. Based on the above principles the application on review of sentence and have
it substituted with the least punitive punishment like Probation or
Community Service Order lacks merit and the same is dismissed with no
orders as to costs under Section 382 of the Criminal Procedure Code.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E006 OF 2026
IN THE MATTER OF SENTENCE REVIEW UNDER SECTION 363 AND 364
OF CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF ARTICLES 50(2)(P) Q), 23(1), 165(3)(A)(B), 24(1) OF
THE CONSTITUTION
HILLARY OTIENO……………………………………………..……………..APPLICANT
VERSUS
REPUBLIC………………………………………………..………………..RESPONDENT
Coram: Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The Applicant in this case was arraigned before Court charged of defilement
contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The
particulars being that Hillary Otieno on the 9th of September 2018 at Ibona
location within Vihiga County intentionally caused his penis to penetrate the
vagina of Maritha Anono a child aged 12 years.
2. Before this Court is notice of motion dated 12th February by the Applicant
who seeks the following orders:
a. The Hon. Court be pleased to have and determine this application
b. The Applicant is before sentence to review to least punitive one that is
probation or Community Service Order
CRIMINAL MISC E006 OF 2026 2
c. That I am sorry and remorseful to the said offence.
3. The application is based on the grounds that:
a. THAT, I am the above inmate currently serving the sentence of 15 years
imprisonment in the offence of defilement contrary to Section 8(1) (2) of the
Sexual Offences Act No. 3 of 2006.
b. THAT, I am not against only praying that the sentence of 15 years
imprisonment to be substituted with the least punitive one.
c. THAT, I am sorry and remorseful to the commission of the said offence hence
plead to the honorable Court to be pleased to treat me as the first offender.
d. THAT, your lordship I have served more than 7 years now remaining with
less years to finish my term-requesting that the remaining period hon. Court
allow me to finish while outside-noncustodial sentence as I pray remorseful
and leniently.
e. THAT, I support my application in line with the sentencing policy guidelines
2.5.1 which states that, the probation of offenders Act Cap 64 Laws of
Kenya gives Court the option of placing offenders on probation. A probation
order is one which places offenders under the supervision of a probation
officer not less than 6 months and not more than 3 years to serve.
f. THAT, since my arrest and conviction, I have learnt a lot on ways that will
enhance me a lot not break any law and I promise that I will not engage
myself in any criminal activities.
g. THAT, the hon, Court to be pleased to have mercy and consider this
application for sentence view to least punitive one in order to allow me re-
arrange my life again given that at my arrest time, haven't done any
constructive development at the time.
4. In support of the application is the sworn affidavit by Hillary Otieno who
deponed as follows:
a. That I was convicted and sentenced to serve life then and later substituted
with 15 years imprisonment in the offence of defilement
CRIMINAL MISC E006 OF 2026 3
b. That I am not against only praying to the hon Court to have the sentence of
15 years to be substituted with the least one that is probation or CSO given
that am remaining with less 3 years
c. That I am sorry and remorseful to the said offence.
Decision
5. The Applicant was tried, found guilty, convicted and sentenced to life
imprisonment for the offence of defilement and 3 years for the offence of
assault. The Applicant preferred an appeal on both conviction and sentence
and in the pronouncement of the Judge she ruled as follows:
a. For the foregoing reasons, the upshot of this Court's decision was that
the Appellant's Petition of Appeal that was lodged on 22nd August 2022
which was subsequently amended on 15th November 2023 was partly
merited but only on the aspect of sentence only. His conviction on the
offence of defilement and assault be and are hereby upheld as they were
both safe.
b. It is hereby directed that the sentence of life imprisonment be and is
hereby set aside and/or vacated and replaced with an order that the
Appellant be and is hereby sentenced to fifteen (15) years imprisonment
to run from the date of his arrest on 10th September 2019.
c. For avoidance of doubt, the sentence of three (3) years in respect of the
offence of assault be and is hereby upheld with an order that it shall run
concurrently with the sentence of fifteen (15) years that was imposed on
him for the offence of defilement.
d. It is also hereby directed that the period between 10th September 2019
when the Appellant was arrested and 31st July 2022 be and is hereby
taken into account while computing his sentence as provided in Section
333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
CRIMINAL MISC E006 OF 2026 4
6. This mere application filed on Court on 12th February 2026 does not satisfy
the criteria on the Bernard Gacheru v Republic [2002] eKLR the Court held
that:
“It is now settled law, following several authorities by this Court and
by the high Court, that sentence is a matter that rests in the discretion
of the trial Court. Similarly, sentence must depend on the facts of each
case. On appeal, the appellate Court will not easily interfere with
sentence unless, the sentence is manifestly excessive in the
circumstances of the case, or that the trial Court overlooked some
material factor, or took into account some wrong material, or acted on
a wrong principle. Even if, the Appellate Court might itself not have
passed that sentence, these alone are not sufficient grounds for
interfering with the discretion of the trial Court on sentence unless,
anyone of the matters already states is shown to exist.”
7. Based on the above principles the application on review of sentence and have
it substituted with the least punitive punishment like Probation or
Community Service Order lacks merit and the same is dismissed with no
orders as to costs under Section 382 of the Criminal Procedure Code.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE