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Mbugua v Republic (Criminal Revision E048 of 2023) [2023] KEHC 18177 (KLR) (2 June 2023) (Ruling)
Neutral citation:
[2023] KEHC 18177 (KLR)
Republic of Kenya
Criminal Revision E048 of 2023
GL Nzioka, J
June 2, 2023
Between
Francis Kariuki Mbugua
Applicant
and
Republic
Respondent
Ruling
1.On April 1, 2022, the applicant was arraigned before the Senior Principal Magistrate’s court charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (herein the “Act”) in the main count and an alternative count of committing an indecent act with a child contrary to section 11(1) of the Act. The particulars of each count are as per the charge sheet.
2.The applicant pleaded not guilty and the case proceeded to full hearing. He was found guilty on the main count and convicted accordingly. He was then sentenced to serve a custodial period of fifteen years (15) years.
3.However, he has filed the subject application herein in which he seeks for review of the subject sentence on the grounds that, he is a first offender and remorseful. That he is not appealing against conviction and pleads to be released on a non-custodial sentence, as he is the sole bread winner of the family. He avers through the supporting affidavit that, pursuant the famous case of Muruatetu and the case of Benard Mulwa Musyoka -vs- Republic Criminal Appeal No 26 of 2016, minimum sentences have been declared unconstitutional, as it does interfere with the discretionary power of the court in sentencing a convicted person.
4.The Respondent did not file any response to the application as the matter was listed for consideration alongside other matters earmarked for decongestion under the Community Service Orders Act.
5.Be that as it were, the court ordered for a sentence review report and was availed by the Probation Department.
6.I have considered the application in the light of section 362 as read with section 364 of the Criminal Procedure Code which provides for revisionary power of the court. The subject provisions states that: -
7.Further, section 364 of the Code states as follow: -
8.Pursuant thereto, the power will only be exercised where, the impugned sentence is either incorrect, illegal or improper. Thus the objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law and that 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.
9.The applicant herein was convicted of an offence under section 8(1) of the Act. The sentence is provided for under section 8(3) of the Act which states: -
10.In the given circumstance the sentence meted out of 15 years’ imprisonment is lawful and legal. As such it is not subject to revision
11.Furthermore, although the sentence review report seems to be positive, it does not capture the views of the victim, therefore lacks objectivity and neither can it displace the minimum mandatory sentence meted out.
12.However, I note that the sentence meted out did not take into account the period he was in custody. I therefore order that the fifteen (15) years’ term runs from April 1, 2022. Otherwise the rest of application fails for lack of merit.
DATED, DELIVERED AND SIGNED THIS 2ND DAY OF JUNE 2023GRACE L. NZIOKAJUDGE In the presence of:Applicant in court, virtuallyMr. Atika for the RespondentMs. Ogutu Court Assistant.
