https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7948

Kasina v Republic (Miscellaneous Criminal Revision E110 of 2025) [2026] KEHC 7948 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 7948 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Criminal Revision E110 of 2025 JN Onyiego, J June 5, 2026 Between Samuel Mutinda Kasina Applicant and Republic Respondent (Being revision application against the sentence of Hon. Sagero (SRM) Sexual offence Case No. E017 of 2022 delivered on 16-6-2022 at Makueni Law Courts) Ruling 1.The applicant herein was charged with the offence of Defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. Particulars were that, on the 24th day of May 2022 at around 1300hrs at [Particulars Withheld], Kithie Sub-location, Kitise Location, Kathonzweni Sub-County within Makueni County, he unlawfully and intentionally caused his penis to penetrate the anus of M.M.M. a child aged three years. 2.He was alternatively charged with the offence of committing an Indecent Act with a Child Contrary to Section 11(1) of the Sexual offences Act No.3 of 2006. Particulars were that, on the 24th day of May 2022 at around 1300hrs at [Particulars Withheld], Kithie Sub-location, Kitise Location, Kathonzweni Sub- County within Makueni County, he unlawfully and intentionally touched the anus of M.M.M. a child aged three years with his penis. 3.Having denied the charge, the case proceeded to full trial. Consequently, he was found guilty and sentenced to 20 years imprisonment. 4.Aggrieved by both the conviction and sentence, he appealed to the high court vide criminal appeal No. E112 of 2022. The hon. Judge dismissed the appeal and upheld the sentence on 20-3-2025. 5.Subsequently, he has now moved to this court vide a Notice of Motion dated 30-7-2025 seeking review of sentence on grounds that; he has served substantial sentence; he be committed to non-custodial sentence; the sentence is harsh; he is a first offender; the court did not consider mitigating factors and that he is remorseful. 6.In response, prosecution urged the court to dismiss the appeal as it was functus officio having determined the appeal. 7.I have considered the application herein and the oral submissions by both parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought. 8.The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code which provides as follows;“ 362.Power of High Court to call for recordsThe 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. 364.Powers of High Court on revision1.In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—a.in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;b.in the case of any other order other than an order of acquittal, alter or reverse the order.c.in proceedings under Section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.2.No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.3.Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. 9.It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the Criminal Procedure Code is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision Number 194 of 2023 Kisii High Court in the case of Barongo Sianyo Atembe vs Republic. 10.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence. There is no application nor appeal filed challenging the legality or otherwise propriety of the sentence imposed. It is trite that sentencing is at the discretion of the court. An Appellate Court can only interfere if the same is illegal, excessive or imposed after taking into account wrong legal principles or taking into account irrelevant factors. See Gacheru v Republic (Criminal Appeal 188 of 2000)(2021)KECA 94(KLR)(20 February 2002) (Judgment). 11.The prayer that he be treated with leniency was the subject of mitigation before the trial court which fact was considered. 12.In the circumstances, I do not see any good reason persuasive enough to interfere with the legal sentence imposed. He is lucky he did not get the minimum life imprisonment provided for the offence of defiling a child aged 3 years. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 5TH DAY JUNE 2026…………………………………………..J. N. ONYIEGOJUDGE