https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7191

Goodluck v Republic (Criminal Revision E096 of 2025) [2026] KEHC 7191 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7191 (KLR) Republic of Kenya In the High Court at Makueni Criminal Revision E096 of 2025 JN Onyiego, J May 22, 2026 Between Kelvin Ngei Goodluck Applicant and Republic Respondent (Being revision application against the sentence of Hon. O.A. Nyaundusi (RM) in Criminal Case No. E062 of 2024 delivered on 22-1-2022 at Makindu Law Courts) Ruling 1.The applicant herein was charged with the offence of rape contrary to section 3(a)(b) as read with section 3(3) of the Sexual Offences Act No. 3 of 2006. Particulars were that, on 9-9-2024 at [particulars withheld] of Makueni County, he intentionally and unlawfully caused his penis to penetrate the anus of MB without his consent. 2.He was also charged with an alternative count of committing an indecent act with an adult contrary to section 11(a) of the Sexual Offences Act No. 3 of 2006. Particulars were that, on 9-9-2024 at [particulars withheld] of Makueni County, he intentionally and unlawfully touched the anus of MB using his penis. 3.Having denied the charge, the case proceeded to full trial. Consequently, he was found guilty and sentenced to ten years imprisonment. 4.Subsequently, he has now moved to this court vide an undated notice of motion seeking review of sentence on grounds that; he has served substantial sentence; he deserves the least sentence provided in respect of that offence; he is a pauper; he be committed to non-custodial sentence; his relatives are ready to receive him back at home. 5.In response, prosecution opposed the application on grounds that the sentence imposed is legal and that there is no law governing review of sentence in the circumstances. That if he has reformed, he will benefit from remission in prison. 6.I have considered the application herein and the oral submissions by both parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought. 7.The law governing revision in a criminal case is captured under section 362 and 364 of the Criminal Procedure Code which provides as follows;“362.Power of High Court to call for recordsThe 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.364.Powers of High Court on revision(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Panel Code (cap 63), the Prevention of Terrorism Act (cap 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (cap 245), the Prevention of Organized Crimes Act (cap 59), the Proceeds of Crime and Anti-Money Laundering Act (cap 59A), the Sexual Offences Act (cap 63A) and the Counter-Trafficking in Persons Act (cap 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)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.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed." 8.It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the Criminal Procedure Code is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision number 194 of 2023 Kisii High Court in the case of Barongo Sianyo Atembe vs Republic. 9.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence. There is no application nor appeal filed challenging the legality or otherwise propriety of the sentence imposed. It is trite that sentencing is at the discretion of the court. An appellate court can only interfere if the same is illegal, excessive or imposed after taking into account wrong legal principles or taking into account irrelevant factors. See Gacheru v Republic (Criminal Appeal 188 of 2000) (2021) KECA 94 (KLR) (20 February 2002) (Judgment). 10.The claim that he deserves the least sentence provided in law for this offence is not correct because the court gave him the minimum sentence provided under that section. 11.In the circumstances, I do not see any good reason persuasive enough to interfere with the legal sentence imposed. Accordingly, application is hereby dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 22ND DAY OF MAY, 2026....................................J. N. ONYIEGOJUDGE