https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11646

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL MISC. APPLICATION NO. E016 OF 2026** **IN THE MATTER OF ARTICLES 2, 10(3), 19, 20, 22, 27(1&2), 50(2)(Q) AND 165(3) OF THE C.O.K 2010** **AND** **IN THE MATTER OF PARAGRAPH 2.4.1.2, 4.2.2, 4.3 & 2.5.1 OF THE REVISED SPG OF 2023** **AND** **IN THE MATTER OF PROBATION OF OFFENDERS ACT CAP 64 LAWS OF KENYA** **BETWEEN** **JOHN OKANG'A OMUKUYIA .................................................... APPLICANT** **VERSUS** **REPUBLIC...........................................................................**.**RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies** **RULING** 1. Before this Court is Notice of Motion dated 10th March 2026, seeking the following orders: 1. *The Applicant was convicted of defilement contrary to Section 8(1) ARW 8(2) of the S.O.A No. 3 of 2006 and sentenced to fifteen (15) years imprisonment.* 2. *He Applicant opted not to lodge an appeal against the sentence but come to this Court requesting for order that he be enrolled for probation/community service order.* 3. *The Applicant is transformed, reformed and well rehabilitated therefore promises to be law abiding citizen as well as abiding by terms and conditions issued.* 4. *The Applicant is sixty (60) years of age suffering from sickness associated with old age therefore humbly request the Court to enroll him for a non-custodial sentence to enable him receive proper medical care* 5. *The Applicant was the sole breadwinner to his family of three (3) children who have since suffered due to lack of proper parental care and guidance.* 6. *This Court is called upon to champion the value of inclusivity through promoting community service by using non-custodial sentences.* 7. *The Applicant is sorry and remorseful and promises to be an ambassador against involvement in crime and b enrolling him for a non-custodial shall aid in decongestion in our correctional facilities.* 8. *Reasons wherefore; the Applicant humble prayers are that.* 9. *This application be admitted as meritorious* 10. *He be enrolled for probation* 2. In support of the application is the sworn affidavit of John Okang'a Omukuyia, who deponed as follows: 3. *I am Kenyan citizen male adult of sound mind and duly competent to make an oath and swear this affidavit.* 4. *I was convicted of defilement contrary to Section 8(1) ARW 8(2) of the S.O.A no. 3 of 2006 and sentenced to fifteen (15) years imprisonment.* 5. *I humbly and prayerfully request this Court to enroll me for probation/community service order to enable me receive proper medical care as I am 60 years of age and suffering from sicknesses related with old age.* 6. *I am transformed, reformed and well rehabilitated therefore promises to be law abiding citizen as well as abiding by terms and conditions issued.* 7. *I was the bread winner to my family of three children who have since suffered due to my absence* 8. *I call upon this Court to champion the value of inclusivity through promotion of community involvement by use of non-custodial sentences.* 9. *I am very sorry and remorseful for the criminal acts of lawlessness and promises to be an ambassador against involvement in crime.* **Decision** 1. The law is settled on any decision by this Court to review sentence which has already been determined by the same Court during the appeal’s process. The predominant question addressed by the Court in *Bernard Kimani Gacheru vs Republic [2002] eKLR* in which the Court held as follows: *“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, that 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 principle. Even if, the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”* 1. The Court of Appeal in *Thomas Mwambu Wenyi Vs Republic (2017) eKLR* cited the decision of the Supreme Court of India in *Alister Anthony Pereira Vs State of Mahareshtra* at paragraph 70-71 where the Court held the following on sentencing: - *“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The Courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the Courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence indetermination of sentencing the crime doer. The Court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”* 1. The key core principle on review of sentence inter alia: * *Correction of Errors: High Courts possess inherent revision powers to fix clear mistakes or illegal terms.* * *Threshold for Change: Altering a sentence requires proof of a fundamental error or an unjust penalty.* * *Procedural Compliance: Lower Courts must follow strict sentencing guidelines to avoid having decisions quashed* 1. The Applicant in his affidavit has admitted that he did not file an appeal on conviction but preferred to move this Court for purpose of review of sentence based on his age and that he has since transformed while serving sentence in prison. Essentially he is relying on the primary objective of rehabilitation to have him released from prison so that he can serve the remainder of period on probation. The Sexual Offences Act is one of the legislation which has been ring-fenced by the law on matter of sentence for even within the decision by the Superior Courts such sentences are rarely reviewed unless there is new compelling evidence by the Applicant which was not available at the time of trial and sentencing before the Subordinate Court. In considering this application, I can’t afford to bear in mind the principle in *R vs Scott (2005) NSWCCA 152* in which the Court held as follows: *“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed...One of the purposes of punishment is to ensure that an offender is adequately punished...a further purpose of punishment is to denounce the conduct of the offender.”* 1. Similarly, in *S vs Malgas 2001 (1) SACR 469 (SCA)* at para 12 where it was held that: *“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial Court, approach the question of sentence as if it were the trial Court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial Court...However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial Court. It may do so when the disparity between the sentence of the trial Court and the sentence which the appellate Court would have imposed had it been the trial Court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate"* 1. I have examined the application by the Applicant and I find no new compelling evidence for this Court to review the sentence of 15 years imposed by the trial Court for the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offence Act of 2006. The motion stands dismissed for want of merit. 2. Orders accordingly **DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**