Wachira v Republic [2022] KEHC 14686 (KLR)

Wachira v Republic (Criminal Revision E195 of 2021) [2022] KEHC 14686 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14686 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Revision E195 of 2021

A. Ong’injo, J

October 19, 2022

Between

Edwin Wachira

Applicant

and

Republic

Respondent

Ruling

1. The applicant Edwin Wachira was accused in Mombasa Chief Magistrate’s Court with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 in Criminal Case No 3299 of 2012. He was found guilty, committed and sentenced to serve 20-year imprisonment on July 30, 2014.

2. Upon committal, the applicant preferred an appeal in H C Criminal Appeal No 142 of 2014 but to date the proceedings in the trial court have not been traced and the applicant opted to have the appeal withdrawn so that he pursues Revision No E149 of 2021. The order withdrawing CRA No 142 of 2014 was made on June 2, 2022.

3. The grounds upon which the application was made were that the sentence of 20 years is harsh and excessive as the applicant was a first offender. The applicant also argued that his appeal has delayed for over 8 years since 2014 due to missing lower court records and thus he made a decision to pursue review/resentencing rather than the appeal.

4. The applicant also argued that the complainant’s evidence was not corroborated with the doctor’s evidence as the doctor did not establish that there was penetration since the complainant’s hymen was intact and she had no physical injuries. The applicant also argued that the trial magistrate did not factor his stay in remand when sentencing him. The applicant urged the court to reduce his sentence to time already served.

5. In his submissions, the applicant reiterated his grounds and in addition urged the court to relay on the holding in Philip Mueke Maingi & others v Director of Public Prosecutions & anotherin Petition No E017 of 2021 where Justice Odunga held whereas the sentences prescribed under the Sexual Offences Act are not unconstitutional by the mere fact of such prescription and the trial courts are at liberty to impose them, the imposition of the same as the minimum mandatory sentences does not meet the constitutional threshold particularly article 28 of the Constitution.

6. This court on March 24, 2022 ordered that the applicant’s sentence of 20 years runs from February 10, 2012 when he was arraigned in court. The applicant was sentenced on July 30, 2014. It means that if his sentence of 20 years commenced on February 10, 2012 by the time he was being sentenced, his sentence had reduced by 2 years and five months resulting in a sentence of 17 years and 7 months. The applicant has since served 8 years from July 30, 2014. It means he remains with 9 years and 7 months, upon commutation by the prisons.

7. In conclusion, this court finds that the applicant’s application for revision has merit and revises his sentence to 5 years.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 19TH DAY OF OCTOBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Kambaga for RespondentApplicant present in person