Wambua v Republic [2025] KEHC 8592 (KLR)

Wambua v Republic (Criminal Revision E328 of 2024) [2025] KEHC 8592 (KLR) (19 June 2025) (Ruling)

Neutral citation: [2025] KEHC 8592 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Revision E328 of 2024

TW Ouya, J

June 19, 2025

Between

John Mutuku Wambua

Applicant

and

Republic

Respondent

Ruling

1. The applicant, John Mutuku Wambua, approached this court vide a Notice of Motion dated the 14th of October 2024, seeking a revision of the sentence imposed by the trial court in Kandara Principal Magistrate’s court Sexual Offences Case No. E006 of 2021.

2. The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual offences Act. It is alleged that on the 7th of August 2021, at around 17:00hrs, in Ithanga sub-county, within Murang’a county, the applicant intentionally caused his penis to penetrate the vagina of V.N.W a chid aged 15 years old.

3. In the alternative, the applicant was charged with committing an indecent Act with a child, contrary to section 11 (1) of the Sexual Offences Act. The particulars allege that on the 7th of August, 2021, in Ithanga sub-county, within Murang’a county, the applicant intentionally touched the breast and vagina of V.N.W a child aged 15 years.

4. The applicant pleaded not guilty to the charges that had been levelled against him and after a full trial, the learned trial magistrate convicted him of the main count and sentenced him to imprisonment for a term of fifteen (15) years.

5. The applicant now seeks a review of that sentence and prays that this court reduces the sentence of 15 years imprisonment imposed on him by the trial court. The application is premised on the grounds stated on the face of the motion and in the depositions made by the applicant in his supporting affidavit. In brief, the applicant avers that he has undergone extensive reforms and rehabilitation while in custody. That he is a 1st offender and remorseful that he was the sole bread winner of his family, which has suffered due to his continued incarceration; and that his health is deteriorating while in prison.

6. The application was opposed by Mr. Mwangi, learned prosecution counsel. In his brief oral submissions, Mr. Mwangi submitted that the applicant has not adduced proper reasons as to why he seeks a review of his sentence. It was his submissions that an application or review under Section 362 of the CPC, gives power to the high court to call for the records of the lower court to ascertain its correctness and propriety and that the applicant has not indicated what exactly needs to be reviewed. He submitted that health alone is not a ground for review, as such, the application should be dismissed.

7. I have duly considered the application and the brief oral submissions made by the learned prosecution counsel. I have also read the record of the trial court. Having done so, I find that the present application invokes the revisionary jurisdiction of the high court as provided for under Section 362 of the Criminal Procedure Code (CPC) as read with section 364 of the Criminal Procedure Code.

8. As per Section 362 of the Criminal Procedure Code, the High Court is empowered to call for and examine the record of the lower court in criminal proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order made by the trial court or the regularity of any proceedings before the trial court.

9. The said provision of law stipulates as follows: “The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

10. That being said, it is trite that sentencing is at the discretion of the trial court and this court when exercising its supervisory jurisdiction can only interfere with the sentence imposed, if it is satisfied that it was illegal or that when passing the impugned sentence, the trial court applied wrong legal principles or considered extraneous factors or failed to consider relevant ones.

11. This position was reiterated by the Court of Appeal, in Bernard Kimani Gacheru versus Republic (2002) eKLR; as follows: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

12. In this case, the applicant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Sexual Offences Act, makes it clear that anyone convicted of the offence of defiling a child of between the ages of twelve to fifteen years, shall be liable to serve a sentence of not less than twenty years.

13. In this case, the trial court after considering the mitigating circumstances sentenced the accused to serve a term of fifteen (15) years imprisonment, which sentence is below the minimum sentence imposed for the said offence. It is therefore evident that the learned trial magistrate imposed an illegal sentence, as the minimum sentence for the offence of defiling a child between ages of twelve (12) to fifteen (15) years is a term of twenty (20) years imprisonment and not fifteen years.

14. Whereas the sentence provided under section 8 (3) of the Sexual offences Act gave the learned trial magistrate the discretion to impose a higher sentence than the minimum sentence of 20 years imprisonment, he had no discretion to impose a sentence lower than the least severe sentence of 20 years imprisonment that had been provided for under section 8 (3) of the Sexual Offences Act.

15. The Supreme court in Republic versus Joshua Gichuki Mwangi, petition E018 of 2023; stated as follows: “We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law.”

16. That being said, Section 364 (2) of the Criminal Procedure Code, empowers this court to correct a sentence imposed by the trial court, where the said court failed to impose a sentence, it was legally required to impose. The said provision of law stipulates thus: “No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.”

17. In this case, whereas the grounds adduced by the applicant for seeking a review of his sentence are not sufficient grounds to warrant interference by this court, I find that the learned trial magistrate meted out on the applicant an illegal sentence as it was below the minimum sentence imposed for the offence of defiling a child of between the ages of twelve (12) to fifteen (15) years.

18. Considering that this is a matter where the court would make an order for enhancement, the same would have ensued had the prosecution filed and served the applicant with notice of enhancement. Being that the same was not filed, it behoves this court to warn the applicant of the possible enhancement of sentence upon review under section 354(3) of the Criminal Procedure Code and the principle restated in J.J.W Vs. REPUBLIC [2013] eKLR that:“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Oftentimes this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.” See also Francis Odingi Vs. Republic [2011] eKLR

19. In the circumstances, upon being warned by the court, the Applicant indicated that he wishes to withdraw his application for review. The same was accepted by the court and matter marked as withdrawn and CLOSED.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH JUNE, 2025. HON. T. W. OUYAJUDGEFor Appellant…JOHN MUTUKU WAMBUA ( virtually at Kamiti Medium Prison)For Respondent……P MwangiCourt Assistant……Brian