Karriuki v Republic (Criminal Revision E001 of 2025) [2026] KEHC 11543 (KLR) (28 July 2026) (Ruling)

Karriuki v Republic (Criminal Revision E001 of 2025) [2026] KEHC 11543 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11543 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E001 of 2025 PN Gichohi, J July 28, 2026 Between Hillary Waweru Karriuki Applicant and Republic Respondent Ruling 1.The background of this Revision Application is that the Applicant, Hillary Waweru Kariuki, was charged in Nakuru Criminal Case No.92 of 2016 with the offence of attempted defilement contrary to Section 9 (1) (2) of the Sexual Offences Act. 2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. 3.He pleaded not guilty to the charges and upon trial, the Court found him guilty and convicted him of the offence of attempted defilement vide Judgment delivered on 25th November, 2016. 4.Dissatisfied with both conviction and sentence, the Applicant preferred an appeal vide Nakuru Criminal Appeal No. 188 of 2016 which he withdrew on 18th February, 2020 before R. Ngetich J. 5.The Applicant has now approached this Court by way of Notice of Motion filed on 6th January, 2025 seeking sentence review under Articles 165 (3) (b), 22, 23 and 50 (6) (a) of the Constitution. 6.The Applicant prays that the Court declares him reformed, rehabilitated and ready for reintegration into society. He urges the Court to find that the period served in prison is enough as a sentence. 7.The Respondent opposes the Application by way of Grounds of Opposition dated 6th January 2025, terming it an abuse of the Court process and that this Court is functus officio. 8.Further that the Application is bad in law and untenable as it seeks the review of a decision of a Court of concurrent jurisdiction. That the application is based on misapprehension of Section 9 of the Sexual Offences Act, which has not been subject to amendment. 9.The application was canvassed by way of submissions and on 22nd January 2026, the Applicant asked the Court to consider the period he spent in custody. 10.In its written submissions, the Respondent relies on the Judiciary Sentencing Policy Guidelines 2016 at paragraph 7.17 to submit that where the law prescribes a minimum sentence, Courts cannot issue a sentence lower than the mandatory minimum. 11.The Respondent further submits that this Court lacks jurisdiction to review or overturn a decision made by another Court of concurrent jurisdiction in that doing so would violate the doctrine of res judicata. In support, he relies on the case of Lawrence Njeru v Republic [2021] eKLR. Analysis and determination 12.Having considered the application, the response and the submissions, the issue for determination is whether this Court has jurisdiction to review the sentence imposed and whether the Applicant has demonstrated grounds to warrant such review. In doing so, this Court is alive to its power under Article 165 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 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.” 13.Further, Section 362 of the Criminal Procedure Code provides that:-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.” 14.This Court notes that contrary to what is being claimed by the Applicant and the Respondent, the record shows that Nakuru Criminal Appeal No. 188 of 2016 was withdrawn on 18th February 2020 following the Prosecution’s Notice of Enhancement of Sentence. 15.Consequently, there is no subsisting appeal against the conviction and sentence of the trial Court. The appellate Court did not pronounce itself on the merits of the appeal, and therefore, the doctrine of functus officio does not apply in the present circumstances. This Court therefore retains jurisdiction to entertain the application for review. 16.The Applicant has averred that he has the right to benefit from the constitutional imperative under Article 50(2)(p)(q) which entitles an accused person to benefit from the least severe sentence. 17.However, it must be borne in mind that on an application for review, this Court cannot delve into the merits of the trial Court’s decision as it would do when exercising its appellate jurisdiction. While Article 50(2)(p)(q) entitles an accused person to benefit from the least severe sentence, that right must be balanced against the gravity of the offence and the interests of justice. 18.The constitutional imperative does not automatically reduce sentences to the minimum prescribed; rather, it ensures that sentences are not harsher than necessary and remain consistent with evolving jurisprudence. 19.In this case, the Applicant was sentenced to 20 years imprisonment for the offence of attempted defilement contrary to Section 9 of the Sexual Offences Act. That Section provides that:1.A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.2.A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years. 20.The record shows that the victim was a child of four and a half years at the time of the offence and that the Applicant was a neighbour. The gravity of the offence is therefore undeniable given the tender age of the victim. 21.While noting that Section 9 of the Sexual Offences Act prescribes a minimum sentence of ten (10) years for attempted defilement, the courts retain discretion to impose a sentence above the minimum or increase the sentence where circumstances demand. 22.In doing so, the courts are guided by proportionality, deterrence and protection of society. Therefore, this Court will only consider whether the sentence was irregular, unprocedural or unfair. 23.The record demonstrates that the trial Court duly considered the Applicant’s mitigation but found that a deterrent sentence was warranted. The circumstances under which the offence was perpetrated were marked by cruelty and disregard for the sanctity of childhood. 24.The offence was grave and its impact profound. The victim was a defenceless four-year-old child, tender in age, wholly dependent on the protection of adults and entitled to a secure environment free from harm. Instead, she was subjected to trauma at the hands of a person from whom trust and safety ought to have flowed, but he acted on the contrary. The seriousness of the crime left enduring psychological scars upon this child and her family. 25.In light of the circumstances herein, the trial court’s discretion to impose a sentence above the statutory minimum was justified. The sentence of twenty (20) years imprisonment was therefore proportionate to the seriousness of the offence and served the objectives of deterrence, retribution and protection of vulnerable members of society. 26.Accordingly, this Court finds the discretion exercised by the trial court was justified and proper. There is no basis to interfere with that sentence. 27.As regards the Applicant’s prayer that the period he spent in remand be considered, Section 333(2) of the Criminal Procedure Code imposes a statutory duty that upon sentencing, Courts to take into account the time an accused has spent in custody before conviction. That was further emphasised by the Court of Appeal- See Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR). 28.Further still, the Judiciary Sentencing Policy Guidelines provide at paragraph 2.3.18:-Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond. 29.Apparently, the Applicant was in custody from the date of arrest, being 7th June, 2016 and during trial, but the record is silent on whether the Court considered this period. 30.In conclusion therefore, this Court makes the following Orders:-1.The application for review is hereby dismissed.2.The sentence of 20 years imprisonment shall run from 7th June, 2016 DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JULY, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 28TH DAY OF JULY, 2026.………………………DR. JOSEPH SERGONJUDGE