[2010] KEHC 2524 (KLR)
The trial magistrate imposed a sentence of 1 year imprisonment for attempted defilement, which is below the statutory minimum of 10 years as prescribed by section 9(1) of the Sexual Offences Act. The High Court, exercising its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code, found...
Source-derived case information.
- Citation
- [2010] KEHC 2524 (KLR)
- Parties
- Applicant: Amos Mutiga Sariso; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 39 of 2010
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Sentence revised upward to statutory minimum.
- Legal Topics
- Sentencing Revision, Sexual Offences, Minimum Sentences
- 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
Amos Mutiga Sariso
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was lawful under the Sexual Offences Act.
- 2 Whether the High Court should revise the sentence to comply with the statutory minimum.
Ratio Decidendi
The trial magistrate imposed a sentence of 1 year imprisonment for attempted defilement, which is below the statutory minimum of 10 years as prescribed by section 9(1) of the Sexual Offences Act. The High Court, exercising its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code, found the sentence illegal and substituted it with the lawful minimum sentence. The court considered the applicant's mitigation but held that the law mandates a minimum sentence, and the court is bound to apply it. The revised sentence was ordered to run from the date of the original sentence to avoid further prejudice to the applicant.
Court Disposition
Sentence revised upward to statutory minimum.
Orders
- The sentence of 1 year imprisonment is set aside.
- The applicant, Amos Mutiga Sariso, is sentenced to 10 years imprisonment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Criminal Revision 39 of 2010
REPUBLIC.........................................................................STATE
VERSUS
AMOS MUTIGA SARISO...........................................ACCUSED
(Arising from the Senior Resident Magistrate’s Criminal Case No. 544 of 2008 at Othaya)
ORDER ON REVISION
AMOS MUTIGA SARISO, the applicant herein was tried and convicted for the offence of attempted defilement contrary to section 9(1) of the Sexual Offences Act No. 3 of 2006. He was then sentenced to serve 1 year in prison. The proceedings of the trial court were placed to my attention for perusal under section 363 of the Criminal Procedure Code.
In exercise of this court’s supervisory jurisdiction of revision under section 362 perused the aforesaid proceedings and found out that the trial magistrate pronounced a sentence which was far below the minimum prescribed under section 9(1) of the Sexual Offences Act. In such cases the law mandates this court to correct the anomally on condition that the convict is heard since the alteration will enhance the sentence upwards. Pursuant to section 364(2) of the Criminal Procedure Code this court heard the submissions of the applicant and the learned state counsel. The applicant merely urged this court to be lenient to him. Mr. Makura, learned state counsel urged this court to correct the sentence.
I have reconsidered the applicant’s facts in mitigation. The law sets a minimum sentence for such
an offence to 10 years imprisonment. I will be lenient to the applicant because he had already been given a false hope that he would serve a lenient sentence of 1 year. That sentence is illegal. In exercise of my revisionary power I hereby set aside the order of sentence of 1 year imprisonment and substitute it with an order sentencing Amos Mutiga Sariso to 10 years imprisonment. The sentence will run from the date of the original sentence i.e. 9/10/2009.
Dated and delivered this 7th day of May 2010.
J.K. SERGON
JUDGE
In open court in the presence of the applicant and Mr. Makura for the state.