https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10354

Gichira v Prosecution (Criminal Revision E164 of 2023) [2026] KEHC 10354 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10354 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Revision E164 of 2023 EM Muriithi, J July 9, 2026 Between Elizabeth Nyambura Gichira Applicant and Prosecution Respondent Ruling 1.This is a ruling on a sentence review application dated 18/7/2023 seeking revision pursuant to Section 362 and 364 of the CPC. 2.The grounds for seeking revision are principally that applicant does not challenge conviction; that she is a first offender; and that she is remorseful and has been reformed through rehabilitation progress. 3.The applicant was convicted for 2 counts respectively of Sexual Assault charged under section 5(1) (2) of the Sexual Offences Act and Sexual assault in view of a family member, contrary to section 7 of the Sexual Offences Act and sentenced to imprisonment for 10 years, on each account both sentences running concurrently. 4.The DPP opposed the application for revision and filed Grounds of Opposition dated 6/3/2026 on principal grounds that “no irregularity or illegality leading to the conviction and sentence has been cited by the applicant to warrant grant of prayers sought” and “the applicant has not demonstrated in any way that the sentence wanted out by the trial court was illegal or that the trial court took into account irrelevant facts in passing the sentence.”. 5.In written submissions dated 25/6/2026,the applicant pleaded with the court to consider her regret of her past actions and her humble background, the death of her mother when she was young and the fact that her being brought up by elderly grandmother with whom she had left her child with; and that she had while in custody been rehabilitated and had acquired industrial skills such as soap making, bead work, undregone paralegal classes and also went back to school. Determination 6.In convicting the applicant, the trial court found the main counts proved and ruled that:“I have no hesitation in finding that the accued actually commited the offences for which she was charged. She made ENM remove her clothes and would fondle her before inserting fingers in her vagina. She would then suck the 10 months old boy’s penis and ask ENM to follow suit.” 7.The appplicant does not challenge her convicition. The applicant does not seek revision as regards to conviction by the court, only a reduction of sentence is sought on the grounds urged in the application and the submissions filed by the applicant date stamped 25/6/2026. 8.The DPP’s objection as to lack of irregulality or illegality of proceedings leading to conviction and sentencing, therefore, apply to the process of sentencing and sentence itself. From the proceedings, it is clear that the applicant was granted an opportunity to mitigate as the Court in its ruling on sentence said“Court: The accused maintains her innocence. However, the offences are in and of themselves repulsive and completely unacceptable. A care-giver gone rogue, and in a most emotionally draining. She has traumatized EMN for life. I cannot even imagine the paranoia the girl will be going through at this stage, and especilaly her parents. For each count, the accused will serve 10 years imprisonment. Sentences will ran concurrently. The sentences shall run from 5/2/2021 when the accused was released from serving her last term for escape. She has been in custodysince.Lorot, CM10/3/2022” 9.It is trite that an appellate court shall not interfere with the sentence imposed by a trial court save on the principles for appellate interference with sentences established in Wanjama V. R (1971) EA 443 as follows:“An appellate Court should not interfere with the discretion which a trial Court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this Court’s interference with it on each of these grounds. No account was taken, as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R. 165 and Godfrey (1967), 51 Cr. App. R. 449. (This admits no doubt because the magistrate awarded the maximum sentence to this offender; which of itself is unusual.)”””The depravity of the applicant’s acts are repellent. 10.Sections 5 and 7 of the Sexual Offences Act under which the applicant was charged provides for sentence of imprisonment for 10 years minumum, which may be changed to lfe imprisonment; in the case of the offence under section 5 for Sexual assault with penetration into the genital organs of another person. 11.It has been clarified by the Supreme Court decisions the Mwangi, Monyeso and Ayako cases that the court has no authority to sentence below the minimum sentences provided for the various offences under the Sexual Offences Act. See paragraphs 45-47 of R v Ayako [2025]KESC 20 as follows:“ 45.In the Republic v Mwangi Case, this court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:“66.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. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”. 46.In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament. 47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.” 12.The Manyeso pith point particularly directed that courts could not rectify or amend statute by their declarations as follows:“ 68.Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act. 69.We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.” Orders 13.Accordingly, for reasons set out above, this trial court finds that it has no jurisdiction to revise and reduce the sentences imposed on the applicant herein for offences under sections 5 and 7 of the Sexual Offences Act, which provide for minimum sentence of imprisonment for ten (10) years. 14.The application for revision of sentence herein is declined. 15.File closed. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Applicant in person.Mr. Mwangi for Respondent.