1.The applicant was arraigned before the Principal Magistrate’s Court at Engineer vide Criminal Case Sexual Offence No 14 of 2017, charged with the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act No 3 of 2006. The particulars of the charge are as per the charge sheet.
2.The applicant pleaded not guilty to the charge and the case proceeded to full hearing. At the conclusion of the case the Honourable Trial Magistrate convicted him and sentenced him to serve a term of ten (10) years imprisonment.
3.However, the applicant now seeks for sentence review based on notice of motion application filed in court on; August 8, 2022, in which he prays that the court reviews and reduces his sentence to the period served. He relies on the memorandum of sentence review in which he states in the mitigating grounds as follows: -a.That, I am a first offender.b.That, I have no pending appeal.c.That, I am remorseful of my offence and have learnt to be a law-abiding citizen and rehabilitated well enough.d.That, I am from a poor but a humble family background.e.That, I am the sole breadwinner of my family and my incarceration has placed them in a very difficult situation.f.That, I am not appealing against sentence and conviction but applying for a review of sentence.
4.The application was opposed by the Respondent through grounds of opposition dated; October 11, 2022, in which it is stated that:a.That, the respondent is opposed to further review of sentence by this court as prayed by the appellant.b.That, this court is functus officio in this matter, having conducted a sentence review in Miscellaneous Application No 4 of 2020.c.That, this application is unmerited and ought to be dismissed forthwith.d.That the reasons whereof we pray that this Honourable court be pleased to dismiss the application.
5.The probation service filed a report dated October 11, 2022 and indicated that the applicant Is 37 years old, married with one child in grade six (6). That, the applicant has P1 certificate from Kaimosi Teachers College and was employed as a teacher in the same school where the complainant was.
6.That, he had a permanent place of abode and his family mambers are willing to receive him, if his given a non-custodial sentence. Further, the village elder is agreeable to the applicant’s release stating that he has learnt his lesson during the period he has so far spent in prison.
7.Furthermore, the applicant has so far served two (2) years and nine (9) months in prison, during which period he has been teaching other inmates and been appointed as the Principal at the Naivasha Medium Prison. That, he has no record of indiscipline at the Prison and is recommended for favourable review.
8.However, the report further indicates that, the applicant still claims that the offence was a set up by the victim’s mother after he rejected her advances. That, the applicant seeks for leniency and is remorseful. That during the hearing of the case in the subordinate court. he was in custody for seven (7) months.
9.It noteworthy though that, the probation officer’s report does capture the victim and her family’s view as they were allegedly not traced
10.Be that as it were, the Respondent filed submission dated, October 12, 2022 and stated submitted that, the applicant sexually assaulted the complainant who was five (5) years old, yet he was her a teacher and duty bound to protect. That, the circumstances were aggravated and resulted to the injury of the complainant.
11.The Respondent urged the court to disregard the pre-sentence report that doesn’t capture the victim’s views and show that the applicant is not remorseful for the offence as he still denies committing the offence. That, in the circumstance a deterrence sentence is appropriate.
12.At the conclusion of the arguments by the parties, I note that, the law that govern the revisionary power of the High Court is stipulated under sections 362 of the Criminal Procedure Code which states as follows:
13.However, that section should be read together with section 364 of the Criminal Procedure Code which states as follow: -
14.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 invoked 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.
15.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 vs Brig FJ Dillon 1964 AIR 497, 1964 SCR (4) 409).
16.It is also noteworthy 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 vs Republic  eKLR, Republic vs Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutors vs Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP vs Samuel Kimuche.
17.Having considered the application, I find that, the offence with which, the applicant is convicted and sentenced of, is provided for under section 5(1)(a)(i) as read with Section 5(2) which states as follows: -
18.It is clear from the aforesaid that, the sentence provided for the offence is a mandatory minimum sentence of ten (10) years imprisonment that may be enhanced to life imprisonment. In the present case, the applicant was sentenced to imprisonment for ten (10) years, being the minimum sentence applicable. The sentence is therefore within the prescribed sentence under the law and is therefore legal, proper and correct.
19.The applicant also seeks to be considered for release under the provisions of Community Service Orders Act, No 10 of 1998. However, section 3 therefore stipulates that: -
20.In that regard, it is noteworthy that, the applicant was sentenced to ten (10) years imprisonment on January 16, 2020. He has more than three (3) years to go. Therefore, he cannot be considered for a non-custodial sentence under the Community Service Orders Act.
21.The applicant further seeks that; the period he was in custody be considered. That, he was in remand for seven (7) months. I have gone through the trial court record and note that the applicant was arrested on March 5, 2017. He was given bail on March 10, 2017 but managed to get bond on July 19, 2017. He was in remand for a period of four (4) months.
22.In that case, the provisions of; section 333 (2) of the Criminal Procedure Code is couched in mandatory terms that the trial court while meting out a sentence shall take into account the period the convict spent in custody.
23.The aforesaid provisions states as follows: -
25.Be that as it were, the applicant avers that, he filed a Miscellaneous application number 4 of 2020 wherein the period he was in custody of seven (7) months was considered as a result the custodial sentence he is serving was reduced from ten (10) years to nine (9) years and five (5) months. As such the application herein to consider the same period is not tenable.
26.The upshot of the aforesaid is that, the application herein has no merit and it is dismissed.
27.It is so ordered.