https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11080

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISCELLANEOUS CRIMINAL APPLICATION NO. E164 OF 2025** **JOSEPH OTIENO ONYANGO…………………………………APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant’s undated notice of motion seeks orders that the application that this court be pleased to impose a lesser sentence than the fifteen (15) years’ imprisonment imposed by the trial court. 1. The grounds upon which the application is premised are that the Applicant was charged, convicted and sentenced to fifteen (15) years’ imprisonment for the offence of defilement contrary to *Section 8(1)* as read with *Section 8(3)* of the *Sexual Offences Act.* He contends that he did not appeal against his conviction and sentence to the High Court and that a previous application for sentence review was dismissed for lack of merit, leaving him with no pending matter before the courts. 2. The Applicant contends that the court has jurisdiction under *Articles 25(a)* and *165(3)(b)* and *(d)(i)* and *(ii)* of the *Constitution* to entertain the application. 3. In his further deposition, the Applicant states that he was only nineteen (19) years old at the time of his arrest and that continued incarceration would irreparably diminish his prospects and aspirations. He urges the court to exercise leniency by imposing a lesser sentence and to invoke *Section 333(2)* of the *Criminal Procedure Code* by directing that the period that the accused remained in custody be deducted from his sentence. 4. The Applicant also relies on his rehabilitation while in custody, stating that he has undertaken theological studies and obtained certificates and a diploma in various prison-based programmes, thereby demonstrating his reformation. 5. The application is opposed and to that end the Respondent filed a replying affidavit sworn on 18th February, 2026 by **Ms. Mercy Mutheu Muema,** learned Prosecution Counsel. 6. In her affidavit, **Ms. Muema** deposes that the Applicant was lawfully convicted and sentenced to fifteen (15) years’ imprisonment for the offence of defilement contrary to *Section 8(1)* as read with *Section 8(3)* of the *Sexual Offences Act,* and that the sentence imposed was lawful, proper and in strict conformity with the law. 7. Counsel avers that the sentence was neither illegal nor excessive and that, the applicable statutory provisions prescribing a mandatory minimum sentence, the trial court had no discretion to impose a lesser term. 8. It is further deposed by **Ms. Muema** that if the Applicant was dissatisfied with the sentence imposed by the trial court, his recourse lay in lodging an appeal within the prescribed time, which he failed to do. According to Counsel, the present application is an impermissible attempt to challenge the sentence through a collateral process and cannot be used as a substitute for an appeal. 9. Finally, **Ms. Muema** deposes that although the Respondent acknowledges the Applicant’s rehabilitation efforts while in custody, such efforts do not constitute a legal basis for the reduction of a mandatory minimum sentence imposed under the *Sexual Offences Act.* She therefore maintains that the application is misconceived, devoid of merit in both law and fact, and ought to be dismissed. 10. Having carefully considered the application, the supporting affidavit, the replying affidavit and the applicable law, the court is of the considered view that the following issues arise for determination: 1. Whether this Court has jurisdiction to entertain the Applicant’s prayer for the reduction or review of the sentence imposed by the trial court in the absence of an appeal. 2. Whether the Applicant has established any legal basis upon which this Court may interfere with the sentence of fifteen (15) years’ imprisonment imposed for the offence of defilement contrary to *Section 8(1)* as read with *Section 8(3)* of the *Sexual Offences Act.* 3. Whether *Section 333(2)* of the *Criminal Procedure Code* is applicable in the circumstances of this case and, if so, whether the Applicant is entitled to have the period spent in pre-trial custody taken into account in computing his sentence. 11. I shall consider the foregoing issues sequentially. 12. The first issue for me to address is whether this Court has jurisdiction to entertain the application for reduction or review of sentenc. 13. The Applicant invites this Court to exercise its jurisdiction under *Articles 25(a)* and *165(3)(b)* and *(d)* of the *Constitution* to impose a lesser sentence than that imposed by the trial court. He concedes that he neither appealed against his conviction and sentence nor successfully prosecuted his previous application for sentence review, which was dismissed for want of merit. 14. The question that therefore falls for determination is whether this Court may, in the circumstances, entertain a fresh application seeking a reduction of sentence. 15. It is trite that the High Court exercises appellate jurisdiction over subordinate courts in criminal matters. A person aggrieved by conviction or sentence is required to invoke that jurisdiction by lodging an appeal in the manner prescribed under the *Criminal Procedure Code.* A court cannot assume appellate jurisdiction in the absence of an appeal, nor can it exercise an amorphous jurisdiction to revisit a lawful sentence merely because an Applicant seeks leniency. To hold otherwise would undermine the finality of criminal proceedings and render the appellate framework established under the *Criminal Procedure Code* otiose. 16. I therefore agree with the Respondent that the present application, in so far as it seeks a reduction of the sentence imposed by the trial court on grounds of youthfulness, rehabilitation and mitigation, is in substance an invitation to this Court to exercise appellate jurisdiction outside the statutory appellate process. 17. That is a jurisdiction this Court cannot assume. The constitutional provisions cited by the Applicant do not confer upon the High Court a general power to reopen or reduce lawful sentences imposed by subordinate courts in the absence of an appeal or any other recognized legal basis. 18. Accordingly, I find that this Court lacks jurisdiction to entertain the Applicant’s prayer for the reduction or review of the sentence imposed by the trial court. 19. The second issue for determination is whether the Applicant has established a legal basis for interference with the sentence. 20. Even assuming that the Court possessed the requisite jurisdiction, I am not persuaded that the Applicant has established any legal basis for interference with the sentence. 21. The grounds advanced in support of the application relate principally to his age at the time of the offence, his rehabilitation while in prison and his aspirations upon release. While those are commendable considerations from a rehabilitative perspective, they do not, without more, furnish a legal basis upon which a lawful sentence may be disturbed. 22. The Applicant was convicted of the offence of defilement contrary to *Section 8(1)* as read with *Section 8(3)* of the *Sexual Offences Act* and sentenced to fifteen (15) years’ imprisonment. There has been no demonstration that the sentence imposed was illegal, based on a wrong principle, or founded on an error of law. The Applicant’s grievance is essentially an invitation to the Court to exercise mercy. Such an invitation cannot supplant the legal framework governing appellate intervention in criminal sentencing. 23. I therefore find that, save for the question arising under *Section 333(2)* of the *Criminal Procedure Code,* which I will address next, the Applicant has not established any legal basis warranting interference with the sentence imposed by the trial court. 24. The third issue for determination is whether *Section 333(2)* of the *Criminal Procedure Code* is applicable in the circumstances of this case. 25. *Section 333(2)* of the *Criminal Procedure Code* imposes a mandatory obligation upon a sentencing court to take into account the period an accused person has spent in lawful custody before conviction and sentence. 26. The purpose of the provision is to ensure that an offender does not serve a period of imprisonment in excess of that lawfully imposed merely because he remained in custody during the pendency of his trial. 27. The record placed before this Court demonstrates that the Applicant was presented for plea before the trial court on 31st August, 2020 and remained in custody until 10th November, 2020 when he was released on bond. The sentencing court ought therefore to have taken into account the period of 71 days that the Applicant had spent in custody when computing the custodial sentence. 28. The Applicant is therefore entitled to the benefit conferred by *Section 333(2)* of the *Criminal Procedure Code*. This is not a reduction of the sentence imposed by the trial court but a proper computation of that sentence in accordance with the law. 29. Giving effect to *Section 333(2)* ensures that the sentence ultimately served reflects the intention of the sentencing court while avoiding double punishment through the exclusion of time already spent in remand custody. 30. Consequently, while this Court declines the invitation to reduce or review the sentence imposed by the trial court, it finds merit in the Applicant’s prayer under *Section 333(2)* of the *Criminal Procedure Code.* 31. In the result, the application succeeds only to the extent that the period of seventy-one (71) days spent in custody shall be taken into account and deducted from the sentence of fifteen (15) years’ imprisonment. The committal warrant shall be amended accordingly. 32. Save for that order, the prayer for reduction or review of the sentence is declined. 33. This file is hereby closed. DELIVERED (virtually) DATED and SIGNED this 16th day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**