[2022] KEHC 18067 (KLR)

Michori v Republic (Revision Case E041 of 2022) [2022] KEHC 18067 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 18067 (KLR)

Republic of Kenya

In the High Court at Nyamira

Revision Case E041 of 2022

WA Okwany, J

December 8, 2022

Between

Erick Kenyanya Michori

Applicant

and

Republic

Respondent

Ruling

1. The Applicant herein was sometime in the year 2012, charged, tried, convicted and sentenced to serve twenty-two (22) years imprisonment for the offence of Defilement contrary to Section 8 (1) (3) of the Sexual Offences Act.

2. The Applicant did not appeal against the conviction or sentence.

3. Through the application filed on 21st September 2022, the Applicant moved this court for a revision of his sentence.

4. In the affidavit in support of the application, the Applicant avers that he has already served ten (10) years in prison, has reformed and has completed government trade tests in tailoring. He urges this court to give him a second chance to freedom as he is totally rehabilitated.

5. Mr. Majale, Learned Counsel for the State, submitted that the Applicant had the option of appealing against the conviction and sentence but chose not to appeal. According to the Counsel, the Applicant cannot seek a reduction of his sentence simply because he believes that he has reformed or has taken a course in prison. He submitted that the prison authorities are best placed to consider the remission of the Applicant’s sentence if they have reason to believe that he has been rehabilitated.

6. I have considered the application and the parties’ respective submissions.

7. The powers of the High Court in revision is contained in Section 362 through to Section 366 of the Criminal Procedure Code (CPC).

8. Section 362 provides that;362, The 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.

9. Section 364(5) provides as follows;Unless 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.

10. From the foregoing provisions of Section 364 (5) of the CPC, it is clear that the revisionary jurisdiction of the High Court can only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal.

11. A perusal of the record reveals that that the applicant did not appeal against either conviction or the sentence. Indeed, the court record shows that the Applicant attached a Certificate from the prison to show that he had not filed any previous appeal or application for revision

12. In sentencing the Accused, the trial Court stated:“The offence of defilement is provided under Section 8(3) of the Sexual Offences Act which provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than 20 years.”

13. I have considered that the accused was a young man aged 21 years at the time of his conviction and sentence in the year 2012. I have considered that he was a first offender.

14. All the ingredients of the charge were proved. The minimum sentence in such case is 20 years. However, the High Court via decision of Odunga J has nullified the mandatory aspect of minimum sentence in the MKS HC Petition NO E17 of 2021 Philip Mueke Maingi and others v Director of Public Prosecutions[2022] KEHC 13118 (KLR). The court held that: -“To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of Article 28 of the Constitution. However, the Courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences’. Taking a from the decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial Courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases”

15. Thus, the court has latitude to sentence even below 20 years in cases where provisions of Sexual Offences Act obtain.

16. For the above reasons and taking to account the circumstances of the case and the fact that Applicant has served 10 years and considering that he was 21 years at the time of the incident and further, that he had just crossed from minority age group to adulthood, I make the following orders: -i.The sentence imposed on the Applicant is hereby reduced to the period that he has already served. In effect therefore, I direct that the Applicant shall forthwith be released from prison unless he is otherwise lawfully held.

17. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 8TH DAY OF DECEMBER, 2022W. A. OKWANYJUDGEIn the presence of:Erick Kenyanya Michori applicantMr. Majale for respondentCourt Assistant – Anita