[2022] KEHC 13835 (KLR)

MWR v Republic (Criminal Revision 5 of 2019) [2022] KEHC 13835 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13835 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Revision 5 of 2019

RM Mwongo, J

October 6, 2022

Between

MWR

Applicant

and

Republic

Respondent

(From Original Conviction in Criminal Case No. 79 of 2017 of the Principal Magistrate Court at Wang’uru. Before Hon. P.M. Kiama - Senior Principal Magistrate)

Judgment

BACKGROUND AND SUBMISSIONS 1. The application herein is for revision of the applicant’s sentence. It is not a formal review application, but is in the form of an informal document which I have seen convicts call “Mitigation Grounds” under Section 362 and 364 of the CPC.

2. The applicant was charged and convicted with the offence of benefitting from child prostitution Contrary to Section 15 (a) of the Sexual Offences Act. The evidence and findings in trial court were that the applicant, who knew the complainant’s parents, had requested the complainant - then a girl aged 14 years - to assist her to fetch firewood. Later on in the evening she lured the child to her home. The child stayed there from November 24, 2016 to November 30, 2016.

3. During the period the child was at the applicant’s home, the applicant brought at least three men, one Dennis and Kariuki and one Dick to her home. Then on different dates these men picked the child, took her away and had sexual intercourse with her. They paid the applicant money in return. It is perturbing that the child witnessed the payments being made.

4. The child finally escaped to her grandmother’s home. When taken to hospital, it was confirmed that she had been sexually violated. In addition, she was found to have contracted a sexually transmitted disease. The lower court sentenced the applicant to a custodial sentence of ten (10) years on March 12, 2018. She was treated as a first offender.

5. The applicant’s only prayer in this application is that the sentence be reviewed, and that she be given a custodial sentence. She asserts that she is a first offender, and is on ARV drugs and is remorseful.

6. She has not attached any evidence in support of her application. There is a letter in the file to the Registrar from the Officer-in-Charge Embu Women Prison dated October 28, 2019. It indicates that the applicant was transferred to Langata Main Security Prison on October 17, 2019 on medical grounds. The letter was in response to a notice of mention of the applicant’s case in court. It was not filed by her as part of her application.

7. The DPP has correctly submitted that the applicant has not demonstrated that she has reformed. He also argues that the sentence imposed was a lawful sentence under Section 15 (a) of the Sexual Offences Act. The DPP further points out that the applicant has served four (4) years of her sentence term. As such, he says, she is entitled, subject to her industry and good conduct, to remission of one third (1/3) of her sentence.

DETERMINATION 8. I have carefully read the lower court proceedings and judgment. I note that the applicant pleaded not guilty to the offence, and took the matter through a trial from February 13, 2017 to May 12, 2018; that the trial court found that she attempted to falsify the dates when the complainant visited her; and that the offence was a serious and grievous offence.

9. Accordingly, I am not persuaded that there is a basis for review of the sentence. In particular, the applicant was entitled to file an appeal against her conviction and sentence. She did not.

10. On the issue of revision, Section 364 (5) of the CPC provides as follows:“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”.

11. Accordingly, this court is not entitled to entertain this application for revision. A proper revision under Section 362 CPC applies where the lower court proceedings are examined so that the High Court:“…..can satisfy itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed and as the regularity of any pleadings of the subordinate court”.

This is not what the applicant has sought. 12. In light of all the foregoing the applicant’s application is hereby dismissed, and the file is closed.

DATED AND DELIVERED AT KERUGOYA THIS 6TH DAY OF OCTOBER, 2022. .....................................HON. JUSTICE RICHARD MWONGOJUDGE