https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7138

Omari v Republic (Criminal Revision E013 of 2025) [2026] KEHC 7138 (KLR) (12 May 2026) (Ruling) Neutral citation: [2026] KEHC 7138 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Revision E013 of 2025 AC Bett, J May 12, 2026 Between Hamzah Omari Applicant and Republic Respondent Ruling 1.The Applicant was tried and convicted for rape contrary to Section 3 of the Sexual Offences Act Cap 63A of the Laws of Kenya in Mumias Senior Principal Magistrates Court S. O. Case No. 5 of 2021. Upon conviction, the Applicant pleaded for leniency urging the court to consider the fact that he had a young family which would suffer if he were to be given a custodial sentence. 2.The trial court referred the case to the Probation office for a pre-sentence report and on 17th November 2023 during sentencing, noted that it had considered the pre-sentence report and sentenced the Applicant to serve ten (10) years imprisonment with a rider that the sentence would run from the time when the Applicant was first taken into custody. 3.By an undated Notice of Motion filed on 20th February 2025, the Applicant prays that the court grants him a non-custodial sentence in substitution of his remaining term as he had served a portion of his sentence. 4.In support of his application, the Applicant swore that he had not appealed against the conviction and sentence and that he had learnt a great lesson and reformed while in prison. He pleaded remorse and prayed for sentence review pursuant to Article 50 (2) (q) of the Constitution and Section 216 of the Criminal Procedure Code. 5.The power of sentence review is donated to the High Court by Article 165 (6) and (7) of the Constitution which provides:-“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 6.To give effect to the anchor constitutional provisions aforesaid, Section 362 of the Criminal Procedure Code provides:-“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.” 7.It follows therefore, that the High Court must on a revision application, scrutinize the record of the subordinate court that has been brought before it in order to satisfy itself there is no impropriety or illegality and that the same is correct. 8.The Applicant has not faulted the trial court for its decision and the court is alive to the provisions of Section 364 (5) of the Criminal Procedure Code which states:-“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.” 9.In the case of Prosecutor v Stephen Lesinko [2018] eKLR, the court elucidated the principles that court must observe on revision as follows:-“a.Where the decision is grossly erroneous.b.Where there is no compliance with the provisions of the law.c.Where the finding of fact affecting the decision as not based on the evidence or it is result of mis-reading or non-reading of evidence on record.d.Where the material evidence on the parties is not considered.e.Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence. (See Article on Revision in civil and criminal cases by Rabia Tus–Sarela and Marya http/www:academia.Edn/24795/revision is in Civil and Criminal Cases).” 10.It is clear from the proceedings that the Applicant was sentenced to the mandatory minimum sentence for the offence in respect of which he was convicted. Section 3 (3) of the Sexual Offences Act stipulates that:-“A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.” 11.The trial Magistrate adhered to the correct procedure before he imposed the sentence upon the Applicant. He called for a pre-sentence report and took the Applicant’s mitigation as required by the Judiciary Sentencing and Policy Guidelines. Subsequent thereto, he imposed the minimum penalty upon the Applicant who was convicted of raping a young lady. According to the pre-sentence report, the victim suffered physical and psychological trauma from which she was yet to recover. The court finds that there was no illegality or impropriety in the sentencing as the trial court had the discretion to impose an appropriate sentence and may as well have imposed a higher sentence than the set mandatory minimum. 12.Additionally, it is well settled that the minimum sentence in Sexual Offences Act is mandatory and any sentence below the minimum would be unlawful. In Republic v Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others [2024] KESC 34 (KLR), the Supreme Court reiterated the position that mandatory minimum sentences under the Sexual Offences act are lawful and stated:-“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…” 13.For the reasons advanced, I find that the application lacks merit and dismiss the same. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 12TH DAY OF MAY 2026.A. C. BETTJUDGEIn the presence of:The Applicant in personMs. Akimat for the RespondentCourt Assistant: Polycap