1.The applicant was arraigned before the Chief Magistrate’s Court at Naivasha charged vide Criminal S O No 53 of 2018, with the offence of defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006, and an alternative charge of indecent act with a child contrary to section 11(1) of the Act. The particulars of the charge are as per the charge sheet.
2.He pleaded not guilty and the case proceeded to full hearing. At the end of the trial, the learned Magistrate found the applicant guilty and sentenced him to ten (10) years imprisonment.
3.The applicant now seeks for sentence review based on the Notice of Motion application filed in court on September 1, 2022 in which he prays for a review of the sentence. He relies on the memorandum of sentence review in which he states in the mitigating grounds that;-a.That, I am a first offender.b.That I am remorseful of the offence.c.That, I would plead with this honourable court to consider the period spent in remand which was two years and eleven month (2 years, 11 months).d.That I have learnt to be a law-abiding citizen.e.That, I am from a poor family background.f.That, I have acquired arming skills as part of my rehabilitation.g.That, I would like to go and use the above skills in catering for myself as I build the nation
4.Despite directions by the Court, the respondent did not file a response to the application nor was a pre-sentence report filed.
5.The law that guides the revisionary power of the High Court sections 362 of the Criminal Procedure Code which states as follows:
6.The section should be read together with section 364 of the CPC which provision states as follow: -
7.It is clear from the above provisions that, the Court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
8.It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision, as held in; Major SS Khanna v Brig FJ Dillon 1964 AIR 497, 1964 SCR (4) 409).
9.It is noteworthy therefore that, the revision jurisdiction does not allow the court to interfere and correct errors of facts, or of law when the order is within the jurisdiction of the subordinate court; even if the order is right or wrong, or in accordance with the law, unless it exercised its jurisdiction illegally or with material irregularity. Reference is made to the cases of; Wesley Kiptui Rutto & Another v Republic  eKLR, Republic v Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutors v Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP v Samuel Kimuche.
10.Having considered the application, I find that, the offence with which, the applicant is convicted and sentenced with is provided for under section 8 (1) as read with section 8 (2) of the Sexual Offences Act, which states as follows: -
11.It is clear from the aforesaid that, the sentence provided for the offence is a mandatory life imprisonment. The sentence meted in the present case was imprisonment of ten (10) years and therefore the sentence was below what is provided for by the law.
12.From a perusal of the trial court sentencing proceedings it is clear that the trial magistrate being well aware of the law took cognizance of the holding of the Muruatetu case and stated that: -
16.In the present case, the applicant herein was sentenced on the June 9, 2021, before the Supreme Court rendered itself in Muruatetu 2.
17.In the given circumstances I shall not interfere with the sentence, however application dismissed,
18.It is so ordered