Mburu v Republic (Miscellaneous Criminal Application E114 of 2022)  KEHC 16695 (KLR) (1 December 2022) (Ruling)
Neutral citation:  KEHC 16695 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E114 of 2022
A. Ong’injo, J
December 1, 2022
1.Augustine Mburu seeks by the application dated June 14, 2022 that his sentence be reviewed and substituted pursuant to the decision of Gikonyo, J in Narok High Court Miscellaneous Criminal Application No E014 of 2021, Baragoi Rotiken v Republic where life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act was substituted with 25 years imprisonment.
2.His grounds are that the trial magistrate had limited freedom to consider his mitigation. He said that he had no criminal record and he was young and remorseful at the time of his sentence but his mitigation was not considered. In High Court Appeal No 96 of 2014, the applicant appealed against conviction and his appeal was dismissed. The applicant did give his mitigation which the trial court considered and sentenced him to life imprisonment.
3.In consideration of emerging jurisprudence on determinate sentence and in consideration of decisions in resentencing and substitution of life sentence with determinate sentences, this court finds that the appropriate sentence in consideration of mitigation given by the applicant is 30 years imprisonment to take effect from January 13, 2013 pursuant to section 333 (2) of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 1ST DAY OF DECEMBER, 2022.HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Kambaga for RespondentApplicant present in person