https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8132

Namusenge v Republic (Criminal Revision E030 of 2024) [2026] KEHC 8132 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8132 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Revision E030 of 2024 TW Ouya, J June 11, 2026 Between Douglas Nandwa Namusenge Applicant and Republic Respondent Ruling 1.The applicant, Douglas Nandwa Namusenge filed a Notice of Motion Application on 8th February 2024 sought a review of his sentence imposed by the lower court in Kandara Senior Resident Magistrates Court in Case S/O No. 63 of 2024. 2.A perusal of the trial court record reveals that the applicants was convicted of the offence of indecent act contrary to section 11(1) of the Sexual offences Act No. 3 of 2006, and was sentenced to serve a term of ten (10) years imprisonment on 30th April 2020. 3.The applicant now seeks a revision of that sentence and prays that the same be reduced to the period already served. The application is premised on the grounds stated on the face of the application and on the depositions made in the supporting affidavit sworn by the applicant in which he deposes that the respondent is bound by the provisions of the Constitution and the written law; that the applicant has a constitutional right under Article 47 and 48 of the Constitution 2010, to fair administrative action and access to justice; and that the court has jurisdiction in the interest of justice under section 362 of the criminal Procedure code to review the sentence to reflect the requirement of the law. 4.The application was opposed by Mr. P Mwangi, learned prosecution counsel. In his brief oral submissions before this court, Counsel Mwangi submitted that the offence with which the accused was charged attracts a mandatory minimum sentence of not less than 10 years imprisonment. That the sentence of ten (10) years imprisonment passed was fair and just, and the same should not be disturbed by this court. 5.Reliance was placed upon the Supreme Court case of Republic v Kitsau Manyeso Petition 013 of 2024 (KeHC) 16 eKLR where the court held that mandatory sentences are legal. It was submitted that in this case, the High Court cannot review a minimum sentence. The court was therefore urged to dismiss the application and that the Applicant should serve the remaining part of the sentence. 6.I have considered the application, the brief oral submissions made by the learned prosecution counsel in opposition of the application, together with the records of the trial court, and I find that this application invokes the revisional jurisdiction of this court as provided for under Section 362 of the Criminal Procedure Code. 7.Section 362 of the Criminal Procedure Code stipulates thus:“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.” 8.It is a well settled principle of law, that sentencing is at the discretion of the trial court, and an appellate court can only interfere with this discretion when it is satisfied that the trial court while sentencing the accused, acted upon wrong principles, overlooked some material factors or that the sentence was manifestly excessive in view of the circumstances of the case. 9.This principle was reiterated by the Court of Appeal in the case of Macharia v Republic (2003) KLR 115-118 as follows:“The principle upon which this court will act in exercising its jurisdiction to review or alter a sentence imposed by the trial court have been firmly settled as far back as 1954, in the case of Ogalo s/o Owuor (1954) EACA at page 270, wherein the predecessor of this court stated: “the court does not alter a sentence on mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James vs.R, (1950) 18 EACA 147 “it is evident that the judge has acted upon some material factors” to this we would also add third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewsky (1912) CCA 28 TLR 364.” 10.Having stated ass above, the offence of indecent act contrary to section 11(1) of the Sexual offences Act No. 3 of 2006 attracts a mandatory minimum sentence of not less than 10 years imprisonment. which can be enhanced where there are aggravating factors. 11.In this case, the learned trial magistrate considered all the circumstances of the case, including the fact that the applicant was repeat offender and proceeded to sentence him to a term of ten (10) years imprisonment. I therefore do not find any need to interfere with the sentence imposed by the court, as the same is just, lenient and fair. 12.Furthermore, the applicant has not demonstrated that the learned trial magistrate while sentencing him, applied the wrong principles, considered some irrelevant factors or that the sentence imposed was manifestly excessive given the circumstances of the case. 13.I have also taken into account the report dated 25th March 2019 by the Probation officer to the trial court prior to the sentencing which was not favorable to the Applicant as it found him unsuitable for non-custodial sentence 14.Based on the above, I find that the application lacks merit and is hereby dismissed. Sentence to run from 30th August 2019. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Applicant present virtuallyNdege for RespondentNyabuto – Court Assistant