Okwemba v Republic (Criminal Miscellaneous Application E033 of 2026) [2026] KEHC 8186 (KLR) (9 June 2026) (Ruling)

Okwemba v Republic (Criminal Miscellaneous Application E033 of 2026) [2026] KEHC 8186 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8186 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E033 of 2026 RN Nyakundi, J June 9, 2026 IN THE MATTER OF REVISION OF SENTENCE BASED ON THE UNCONSTITUTIONALITY OF THE MINIMUM MANDATORY NATURE OF THE SENTENCE UNDER SECTION 9(1)(2) OF THE SEXUAL OFFENCES ACT (SOA). Between Japhet Ng'ambwa Okwemba Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 15th May 2026, the Applicant seeks the following orders:a.This Hon. Court is clothed with proper jurisdiction to hear and determine matters of this nature pursuant to Article 165(3)(a) C.O.K 2010.b.The sentence meted out on the Applicant to be revised and reduced to a lesser one pursuant to Section 26(2) of the penal code.c.The cost/fee involved in preparation and disposal of this matter be waived. 2.Based on the grounds that:a.Cite unconstitutionality of the mandatory nature of the sentence under Section 9(1)(2) of the SOA NO. 3 of 2006.b.No aggravating circumstances stated in the prosecution findings.c.Availability of the mitigating factors as highlighted in the trial Court records such being and be treated as a first offender.d.The Applicant has met the objectives of sentencing being retribution, punishment, deterrence, community protection and rehabilitation.e.Cite sentencing policy guidelines 2023. 3.In support of the application is the annexed affidavit of Japhet Ng’ambwa Okwemba who deponed as follows:a.That I am a Kenyan male adult of sound mind hence competent to swear this affidavit.b.That I was arrested, charged, tried, convicted and sentenced to ten (10) years imprisonment for the offence of Attempted Defilement c/s 9(1)(2) of the SOA NO. 3 of 2006.c.That I do seek orders for revision of sentence to a lesser one pursuant to Section 26(2) of the penal code.d.That this application is supported by the grounds highlighted in the Notice of Motion and others to be adduced at the hearing hereof.e.That I am in prison and unable to raise the required fee/cost needed for preparation and disposal of this matter. Decision 4.This is an application on review of sentence in terms of Section 362 as read with 364 of the CPC. This is about judicial discretion within the policy of sentencing in Kenya. It is anchored in the following statements when Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. 5.On review of sentence the court is guided by the principles outlined in the Bernard Gacheru v Republic [2002] eKLR:“It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 6.On review of sentence so long as it meets the criteria set out by the legislature and there was properly exercise of discretion by the trial Court an appeals Court now sitting as review Court within the ordained principles in the various case law and those on the ambit of Section 80 of the CPA and Order 45 Rule 1 of the CPR combined together the question which arises is whether the sentence complained of is so severe or punitive and a remedy of review would ensure that justice is done to the matter. The Court must therefore look at the totality of the criminal behavior and ask itself what is the appropriate sentence for the offence in question. The facts of the case are very clear and the appropriate sentence is well settled out in the Act. The review Court therefore simply finds no grounds to interfere with the sentence imposed by the trial Court. The same is dismissed for want of merit under Section 382 of the CPC. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………R. NYAKUNDIJUDGEMr. Leina Davies for the State