Analysis and Determination
7.Having considered the application by the appellant as well as his supporting affidavit and the response by the respondent, the main issue for determination is whether the appellant has established a case for revision.
8.This court’s revision jurisdiction is stipulated in sections 362 through 366 of the Criminal Procedure Code. Section 362 of the Criminal Procedure Code specifically establishes that: -
9.For this revision, the powers of this court are provided for under section 364 of the Criminal Procedure Code, which provides:
10.Furthermore, the court, in exercising its revisionary jurisdiction, is by its supervisory role over subordinate courts as contemplated in Article 165(6) and (7) of the Constitution, which provides that: -
11.In the case of Joseph Nduvi Mbuvi vs Republic , eKLR Odunga J (as he then was) held that: -
12.In addition, in Prosecutor vs. Stephen Lesinko  eKLR, the court outlined the principles which will guide a court when examining the issues about section 362 of the Criminal Procedure Code as follows: -
13.The Appellant was charged with the offense of attempted contrary to section 4 of the Sexual Offences Act No. 3 of 2006. Particulars being that on 15th October 2015, the Appellant at Mlima Meza Village in Laikipia West Sub-County within Laikipia County intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Esther Wanjiku Waruhiu.
14.Consequently, the trial magistrate found the accused guilty and sentenced him to 20 years imprisonment. I have thoroughly examined the trial proceedings and am satisfied with the court's findings' correctness, legality, or propriety and the sentence passed.
15.Nevertheless, before this court is an application for review to alter and reduce the finding on the sentence of 20 years meted to the Appellant; he also prayed that this honourable court be pleased to make orders to include the two years spent in remand to his sentence and that he be given a non-custodial sentence. The Appellant contended that he was remorseful and is well-rehabilitated since he has undergone several vocational trainings while in prison.
16.The Criminal Procedure Bench Book, page 116, provides that:Paragraph 24 of the Criminal Bench Book states that: -
17.In the instant case, the 20-year imprisonment the trial magistrate met is fair, just, and indeed lenient. I find that there was no miscarriage of justice occasioned by the same, and the sentence is lawful. Further, I reiterate that there were no glaring acts or omissions to warrant this court to exercise its revisionary jurisdiction as was held in Joseph Nduvi Mbuvi vs. Republic [supra]
18.In addition, I find that there were aggravating circumstances in this case. The victim of the offense was an old fragile 88-year-old older woman in crutches. The appellant took advantage of an elderly and vulnerable woman with exceptional insensitivity. The only reason the Appellant could not penetrate her was her old age. He also stole from her and left her with multiple bruises. I also agree with the Respondent’s contention that according to his admission, the appellant admitted that he was HIV positive and, therefore, he could have knowingly and unlawfully transmitted this disease to the complainant had he successfully attempted to rape her. Therefore, I agree with the respondent’s assertion that, in view of the nature and circumstances of the offense, the sentence was appropriate.
19.That aside, the Appellant went ahead and attacked another woman, PW2, after he had just attempted to rape his first victim. How he attacked PW2 made her believe that he also wanted to rape her, and if her neighbour did not interfere with his depravity, he could have been successful in his attack. Moreover, despite his assertion, I am not convinced as to the appellant’s remorsefulness. I find that there are no compelling reasons to depart from the trial magistrate's sentence based on this case's circumstances.
20.That being the case, the Appellant also prayed this honourable court to be pleased to make orders to include the two years spent in remand and reduce it from his sentence. According to Section 333(2) of the Criminal Procedure Code provides: -
21.Accordingly, the law requires courts to consider the convict’s period spent in custody.
22.Moreover, in Ahmad Abolfathi Mohammed & Another vs. Republic  eKLR, the Court of Appeal held that: -
23.Additionally, in Bethwel Wilson Kibor vs. Republic  eKLR, the Court of Appeal expressed itself as follows: -
24.I have noted that the Appellant was arrested on 16th October 2015 and remanded in custody until he was convicted and eventually sentenced. According to The Judiciary Sentencing Policy Guidelines: -
25.Therefore, this prayer under Section 333(2) has merit and is now allowed. The Appellant will therefore serve twenty years’ imprisonment from the date of arrest, i.e., 16th October 2015.
26.For all the above reasons, the discretion of the trial magistrate in sentencing was properly exercised, and it took into account relevant matters before her. I find no reason to interfere with the sentence of 20 years imprisonment. The Appellant will therefore serve twenty years’ imprisonment from the date of arrest, 16th October 2015.