[2022] KEHC 17205 (KLR)

Nyaguthie v Republic (Criminal Revision E120 of 2022) [2022] KEHC 17205 (KLR) (Crim) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17205 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E120 of 2022

JM Bwonwong'a, J

December 14, 2022

Between

Jeremiah Muriuki Nyaguthie

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence of 3 years imprisonment delivered by Hon. M.A Opondo, P.M, on 31st December 2021 in Makadara Chief Magistrate’s Court in Sexual Offences Case No. 128 of 2018 Republic vs Jeremiah Muriuki Nyaguthie)

Ruling

1. The applicant was charged and convicted for the offence of committing an indecent act with a child contrary to section 11A of the Sexual Offences Act, No 3 of 2006. He was sentenced to serve three (3) years imprisonment.He has now approached this court seeking a review of his sentence.

2. The appellant in his grounds has stated as follows. His mitigation was never considered. He is a 35-year-old and is at the prime of his productive years. He has been in custody for the last 6 months, during which time he has reformed and is now a preacher in the prison ministries. The trial court failed to impose a non-custodial sentence. He is remorseful and promises not to engage in criminal activities. His wife possesses minimal skills to sustain the daily needs of his dependants, who are now subjected to poverty.

3. During the hearing of his application, he made oral submissions. He urged the court to consider a non-custodial sentence to enable him provide for his family. Further, he religiously attended court during his trial.

4. In opposition, Ms Chege learned Prosecution Counsel submitted that the term of imprisonment of 3 years is too lenient for the offence the applicant was convicted of. She submitted that there is no basis for the court to intervene.

5. She also submitted that the applicant is not suitable for a non-custodial sentence.

Issues for determination. 6. I have considered the application, the oral submissions and the applicable law.

7. I find that the issue for determination is whether the applicant has made out a case for the grant of the orders sought.

Analysis and determination 8. The instant application is premised on section 362 as read with section 364 of the Criminal Procedure Code (Cap 75), Laws of Kenya. Section 362 gives the High Court the jurisdiction to call for and examine the record of any criminal proceeding before any subordinate court to satisfy 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. Section 364, on the other hand, provides for the powers of the High Court in revision.

9. The application is founded on the grounds that the trial magistrate did not consider the applicant’s mitigation. In sentencing the appellant, the learned magistrate stated that she had considered the pre-sentencing report, which presented a positive image of the appellant. She also stated that she considered his mitigation and the punishment prescribed by law.She then proceeded to sentence him to 3 years imprisonment.

10. From the record, the trial court considered the applicant’s mitigation and considered the probation report.

11. In view of the foregoing, the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] e-KLR, stated that:'It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.'

12. I find that the trial court acted properly in sentencing the appellant. I find no basis to interfere with the sentencing discretion of the trial court.

13. The upshot of the above analysis is that the application for revision of the sentence fails and is hereby dismissed in its entirety.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe applicant in personMs. Akunja for the respondent