Kaptum v Republic [2025] KEHC 6821 (KLR)

Kaptum v Republic (Criminal Revision E005 of 2025) [2025] KEHC 6821 (KLR) (27 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6821 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Revision E005 of 2025

RB Ngetich, J

May 27, 2025

Between

Alex Kaptum

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Alex Kaptum was charged with the offence of attempted defilement contrary to Section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that the accused on the 7th day of October,2021 at around 0100hrs in Baringo North sub-county within Baringo County, intentionally attempted to cause his penis to penetrate the vagina of L.C a child aged 17 years.

2. The Applicant faced an alternative charge of Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that the accused on the 7th day of October,2021 at around 0100hrs in Baringo North sub-county within Baringo County, intentionally and unlawfully touched the breasts and vagina of L.C a child aged 17 years.

3. The accused denied the charges and a plea of not guilty recorded. The case proceeded to full trial and by a judgement delivered on the 27th September, 2022, the Applicant was convicted and sentenced to serve 6 years imprisonment to commence on the 21st October,2021 when the accused person was placed in custody pending trail.

4. The Applicant has approached this court seeking sentence review so as to serve a non-custodial sentence for the remainder of his prison term on the grounds that he is remorseful, first offender, entirely repentant, reformed and rehabilitated and he has learnt from his incarceration and he prays that this application be allowed by this Court and if released, he will serve as a role model in the society. He states that the complainant has forgiven him and that he has served half of the sentence and prays to be allowed to serve the remaining sentence under probation as he has young family who depend on him for the basic needs and they are suffering a lot following his incarceration.

5. When the matter came up before court on the 10th March,2025, the applicant informed the court that he is remaining with a period of 7 months. The court called for a social inquiry report. The report was filed on the 24th April,2025.

Social Inquiry Report 6. From the report, the Applicant dropped out of school in class 5 in the year 2010 and has been doing casual jobs within the community as his main source of income. During the period he has been in custody, he has not gained any skill and has been working at the farm and at the time of inquiry he was attached at the kitchen department. The Applicant is single and blessed with a child aged 8 years who is paralyzed under the custody of the applicant’s mother.

7. The Applicant's mother indicated that his son has been troublesome for a while due to negative peer influence. She prayed for him to serve non-custodial sentence on ground that she has really suffered taking care of applicant’s baby who is paralyzed. The Applicant uncle stated that the applicant has been troublesome since childhood and the major contributing factor to his behavior is poor parenting and negative peer influence. He prayed for the Applicant to be granted community rehabilitation sentence so that he can take care of his sickly baby.

8. Home reports indicate that at the time of offence, the Applicant was under the influence of alcohol and while visiting his girlfriend who stays within [particulars withheld] village, he confused the girlfriend’s house and entered the victim’s house. He accepts the offence as charged and sentenced. He attributes the offence to alcohol but has quit taking alcohol. He prays for non-custodial sentence so that he can restart his life afresh and continue taking care of his sickly baby.

9. The victim is currently aged 20 years with a child aged four years. She is working as a house help within Eldoret Town. She stated that she has not been in communication with the Applicant for a while and she is opposed to the Applicant 's prayer for non-custodial sentence on ground that the sentence should deter other would-be sexual offenders in the community.

10. The local administration indicated that the Applicant is well known as a troublesome youth within the community and that he had benefited from non- custodial sentence where he was sentenced to serve one year probation sentence for the offence of stealing. The local administrator is opposed to non-custodial sentence on ground that supervision will be difficult as Applicant’s parents are not around at home most of the time as they always consume alcohol.

11. On 28th April,2025 the prosecution counsel opposed non-custodial sentence on ground that the offence is serious and the social inquiry report is not favourable.

Analysis and Determination 12. The application herein invokes the revisional jurisdiction of this court which gives the court powers, in appropriate cases, to review and vary any orders, decision or sentence passed by the trial court if the court was satisfied that the impugned order, decision or sentence was illegal or was a product of an error or impropriety on the part of the trial court. If the court was so satisfied, the law mandated it to make appropriate orders to correct the impugned order, decision or sentence and align it with the law. The above is the import of Section 362 as read with Section 364 of the Criminal Procedure Code.

13. I note also that the Applicant filed a similar application in this court vide Kabarnet High Court Criminal Miscellaneous Application No. E040 of 2023 which was heard and determined by this court where the court dismissed the application vide a ruling delivered on the 6th day of March,2024 wherein the court ordered that the Applicant completes his sentence in prison.

14. The Supreme Court considered the issue of review of judgements and orders in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR and held that:“…we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:a.the Judgment, Ruling, or Order, is obtained, by fraud or deceit;b.the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;c.the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;d.the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”

15. From the foregoing, for a party to successfully move a court to review its own decision or that of a court with coordinate jurisdiction, the party is required to meet certain conditions as established in the above case. The Applicant has not demonstrated any of the grounds set in the Supreme Court in the above cited case. There is therefore no ground that allows this Court to re-engineer its own decision.

16. This court having dealt with similar application by the applicant herein vide Kabarnet High Court Criminal Miscellaneous Application No. E040 of 2023 and there being new circumstances to move this court to review its earlier decision, I see no merit in this application and proceed to dismiss it.

Final Orders: - 17. Application for review is hereby dismissed.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 27TH DAY OF MAY 2025. …………………………………RACHEL NGETICHJUDGEIn the presence of: Ms. Kosgei for State.

Applicant present.

Kibet/Momanyi – Court Assistants.