https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12510

Okello v Republic (Criminal Revision E054 of 2026) [2026] KEHC 12510 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 12510 (KLR) Republic of Kenya In the High Court at Makadara Criminal Revision E054 of 2026 AK Ithuku, J July 10, 2026 Between Humphrey Okello Applicant and Republic Respondent Ruling 1.The applicant Humphrey Okello has brought this application pursuant to Article 165 (3) and (6) of the Constitution Section 362 and 364 of the Criminal Procedure Code. 2.The applicant sought orders:-a.That this Honourable court invokes its revisionary jurisdiction to examine the record of Makadara MCSO E311/2023 to satisfy itself as to the correctness as property of the sentence imposed.b.That the 10 year custodial sentence be reviewed and substituted with a term that fairly consider my mitigating factors, front-time offended status and rehabilitative progress.c.That the court may impose a non-custodial sentence including probation or community service Under Cap 64 and Cap 75 in accordance with principle of restorative justice.d.That the court deducts the period spent on pretrial remand (August 2023 to March 2026) from any final sentence as mandated by Section 333 (2) of the CPC. 3.The application is supported by an affidavit sworn by the applicant where he says that he was a first offender and he has been of good conduct. He complained about his time in remand not being taken into account. 4.Peris Ogega Principal Prosecution Counsel filed grounds of opposition in response. She basically stated that the sentence was lawful and in accordance with the law. It was the minimum provided. 5.I have considered the application, affidavit in support and the grounds of opposition. The accused person was convicted of rape under Section 3 (1) (a) (b) (3) of the Sexual offence act. Under the penal subsection it is provided as follows:-“(3)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.” 6.A plain reading of the statute shows that the sentence of 10 years is lawful. Under the section the sentence may be enhanced to life. 10 years is therefore the absolute minimum. 7.While the applicant cited 14 Articles of the Constitution starting from Article 10 to 165 the body of the application seems to involve Article 165 (6) of the Constitution. The article provides:“(6)The High Court has supervisory jurisdiction over the subordinate court and over any person, body and authority exercising a judicial and quasi-judicial function, but not over a Superior court.”“(7)For purpose of Clause (6) the High Court may call for record of any proceedings before any subordinate court and person body or authority referred to in Clause (6) and may make any order or give any directions it consider appropriate to ensure the fair administration of justice.” 8.The record in Makadara MCSO E311 of 2023 is before this court. I note that in the affidavit by the applicant it is not suggested that the sentence is illegal. The calculation under Section 333(2) of the CPC. I have alternatively noted and found that a sentence of 10 years for the offence of rape is the minimum allowed by the law. The applicant was heard in mitigation by the trial court and that may be the reason he was sentenced to the minimum. 9.I am guided and bound by the decision in Republic versus Mwangi: Initiation for Strategic Limitation in Africa (ISLA) and 3 others (Petition E018 of 2023 (2024)) KESC 334 (KLR). In that case the Supreme Court held that the minimum sentence provided under Sexual Offence Act are Constitutional. 10.The application before me is not a petition seeking to declare Section 3 of the Sexual Offence Act unconstitutional. Until that aspect is litigated the sentence remains constitutional. There is no impropriety and illegality in terms of the sentence pronounced. 11.What is glaring is the issue raised under Section 333 (2) of the Criminal Procedure Code. The same provides:-“333(2) subject to the provision of Section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from and to include the whole of the day of the date on which it was pronounced except where otherwise provided in this code. Provided that where the person sentenced under subsection (1) has provided to such. Sentence been held in custody, the sentence shall take account of the period spent in custody.” 12.The record shows that the matter proceeded while the applicant was in custody. Plea was taken on 29/8/2023. The sentence was delivered on 12/3/2026. He was in custody for two years and seven months. The time in custody is to be deducted from the sentence of ten years. To this extent the application succeeds. The effective sentence with effect from 12/3/2026 will be seven year five months. The net effect is that only prayer number 4 is allowed. The rest of the application is hereby dismissed. It is so ordered. HON. ALEX K ITHUKUJUDGEDATED, SIGNED AND DELIVERED IN VIRTUAL COURT THROUGH TEAMS THIS 10TH DAY OF JULY 2026.Court assistant - AnnastaciaMs. Ogega for the stateApplicant present virtually from Nairobi RemandHON. ALEX K ITHUKUJUDGE10/7/2026