[2017] KEHC 2663 (KLR)
The court found that the sentence imposed by the magistrate was lawful and in accordance with the mandatory minimum sentence prescribed by the Sexual Offences Act. There was no illegality, irregularity, or mistake in the sentencing process. The applicant's mitigation was considered, but the sentencing magistrate was...
Source-derived case information.
- Citation
- [2017] KEHC 2663 (KLR)
- Parties
- Applicant: Mariam Amai Orichum; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 161 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- FN Muchemi
- Legal Topics
- Sexual Offences, Sentencing Principles, Judicial Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mariam Amai Orichum
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was illegal, irregular, or mistaken under the Criminal Procedure Code.
- 2 Whether the court has jurisdiction to substitute the imprisonment sentence with a suspended sentence for the offence of sexual assault under the Sexual Offences Act.
Ratio Decidendi
The court found that the sentence imposed by the magistrate was lawful and in accordance with the mandatory minimum sentence prescribed by the Sexual Offences Act. There was no illegality, irregularity, or mistake in the sentencing process. The applicant's mitigation was considered, but the sentencing magistrate was bound by statute. The court further held that it lacked jurisdiction to substitute the imprisonment sentence with a suspended sentence, as the law does not provide for such an option for the offence in question. Consequently, there was no legal basis to revise or interfere with the sentence imposed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
- The sentence of ten years imprisonment imposed by the magistrate is upheld.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL REVISION NO. 161 OF 2016
MARIAM AMAI ORICHUM.................................... APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS......RESPONDENT
R U L I N G
1. This case is before me for revision under the provisions of Section 362 and 364 of the Criminal Procedure Code. The revision was filed on 27/09/2016 after withdrawal of appeal No. HCRA 64 of 2014.
2. The applicant was convicted of the offence of sexual assault contrary to Section 5(1)(b) of the Sexual offences Act and sentenced to ten (10) years imprisonment.
3. The prayer in this application is for review of sentence on grounds that the applicant having served under eleven (11) months of the sentence has reformed. He states that he was sitting his Certificate of Primary Education (CPE) examination in 2016 and has undergone vocational training in prison in crocheting, making of detergents and shampoo as well as bible courses.
4. The applicant prays for a revision of sentence by setting aside the imprisonment sentence and substituting it with a suspended sentence.
5. I have looked at the Sexual Offences Act and note that it does not provide for a suspended sentence. It is further noted that the minimum sentence provided for by Section 5(1)(b) of the Act is ten (10) years imprisonment which may be enhanced to life imprisonment. The magistrate could not have given any other sentence save for that provided by the law.
6. Section 362 gives this court power to revise sentence or order in the event that the magistrate committed an illegality, irregularity or mistake. In this application, I find that the sentence imposed was within the law and that no irregularity or illegality was committed by the magistrate.
7. It is further noted that the mitigation of the applicant was taken into consideration not withstanding that his hands were tied by the law as regards sentence.
8. I therefore find no basis in law to review the sentence and therefore, dismiss this application.
9. It is hereby so ordered.
DATED AND SIGNED AT EMBU THIS 27TH DAY OF SEPTEMBER, 2017.
F. MUCHEMI
JUDGE