[2022] KEHC 13864 (KLR)
The court held that it has no discretion to reduce the sentence below the statutory minimum of ten years for sexual assault under section 5 of the Sexual Offences Act. The applicant was already given the minimum sentence, and therefore, the application for review of sentence is not tenable. However, the court...
Source-derived case information.
- Citation
- [2022] KEHC 13864 (KLR)
- Parties
- Appellant: David Muthui Githinji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E141 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- Application for review of sentence dismissed; period spent in custody to be deducted from sentence.
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Sexual Offences, Minimum Sentencing, Custodial Vs Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muthui Githinji
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to a review of the sentence imposed for sexual assault under the Sexual Offences Act.
- 2 Whether the period spent in custody prior to sentencing should be deducted from the sentence.
Ratio Decidendi
The court held that it has no discretion to reduce the sentence below the statutory minimum of ten years for sexual assault under section 5 of the Sexual Offences Act. The applicant was already given the minimum sentence, and therefore, the application for review of sentence is not tenable. However, the court recognized that the applicant was in custody for four months prior to sentencing and, pursuant to section 333(2) of the Criminal Procedure Code, ordered that this period be deducted from the ten-year sentence.
Court Disposition
Application for review of sentence dismissed; period spent in custody to be deducted from sentence.
Orders
- The application for review of sentence is dismissed.
- The period of four months spent in custody prior to sentencing shall be deducted from the ten-year imprisonment term.
Full Case Text
Judgment text and source record
20 paragraphs
Githinji v Republic (Criminal Revision E141 of 2022) [2022] KEHC 13864 (KLR) (22 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13864 (KLR)
Republic of Kenya
In the High Court at Naivasha
Criminal Revision E141 of 2022
GL Nzioka, J
September 22, 2022
Between
David Muthui Githinji
Appellant
and
Republic
Respondent
Ruling
1. The matter herein has been placed before the court on the strength of the notice of motion application filed on 15th September 2022 by the applicant, seeking for review of sentence meted upon him vide Criminal case No Sexual Offence E017 of 2022.
2. The applicant was charged in the subject matter with the offence of sexual assault contrary to section 5(1)(a)(i) as read together with section 5(2) of Sexual Offences Act No 3 of 2006. He pleaded not guilty. The case was heard and he was sentenced to serve ten (10) years imprisonment.
3. The application is supported by an affidavit in which the applicant states that, he is remorseful and is ready and willing to serve the community as the court may direct. I further note that, he has filed a memorandum of sentence review and states that, he is not appealing against conviction and sentence but humbly prays that, the sentence be reviewed as he is a first offender and that, the court do exercise its discretion and mete out a lenient sentence, preferably, a non-custodial sentence or community service.
4. Having considered the application in the light of the material placed before the court, I find that, the offence with which the applicant was charged and convicted carries a minimum sentence of ten (10) years; which may be enhanced to life imprisonment as stated under section 5 of the act.(1)Any person who unlawfully(a)penetrates the genital organs of another person with(i)any part of the body of another or that person; or(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
5. I note that, the applicant was given the minimum sentence of ten (10) years. In that case, the application for review of sentence is not tenable. I therefore decline to allow it and dismiss it, save for the fact that, I note he was arrested on February 17, 2022 and arraigned in court on February 18, 2022. He was sentenced on the July 26, 2022. Therefore pursuant to the provision of section 333(2) of the Criminal Procedure Code, the period of four (4) months he was in custody should be deducted from the ten (10) years imprisonment term.It is so ordered
DATED, DELIVERED AND SIGNED ON THIS 22ND DAY OF SEPTEMBER, 2022GRACE L. NZIOKAJUDGECourt- In the absence of the parties. Therefore the order herein should be typed and served upon all the relevant parties that is the Applicant, Prisons Authority and Director of Public Prosecution (DPP).It is so ordered.GRACE L. NZIOKAJUDGE22/9/22