Republic v Wambugu (Criminal Revision E022 of 2026) [2026] KEHC 11478 (KLR) (24 July 2026) (Ruling)

Republic v Wambugu (Criminal Revision E022 of 2026) [2026] KEHC 11478 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11478 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Revision E022 of 2026 MA Odero, J July 24, 2026 Between Republic Prosecutor and Daniel Wanjohi Wambugu Accused Ruling 1.The Office of Director of Public Prosecutions (ODPP) have by way of a letter dated 4th May 2026 sought for a review of the ten (10) year sentence imposed upon the Respondent (Accused Person). 2.The Respondent Daniel Wanjohi Wambugu opposes the application for review. He states that he is satisfied by the sentence imposed by the trial court and urges this court to uphold the same. 3.The Respondent had been charged in the Lower Court with the offence of Defilement Contrary To Section 8(1) (2) Of The Sexual Offences Act 2006. The particulars of the charge were that“On the 23rd day of November 2023 at [Particulars Withheld] in Nyeri South, Sub-county within Nyeri County intentionally caused his penis to penetrate the vagina of JWN a child aged 8 years.” 4.The Respondent faced an alternative charge of Committing An Indecent Act With A Child Contrary To Section 11(1) Of The Sexual Offences Act, 2006. The Respondent pleaded ‘Not Guilty’ to the charge and his trial was conducted in the Magistrates Court. Vide a judgement delivered on 11th February 2025, Hon. N. W. Wanja, Resident Magistrate convicted the Respondent and thereafter sentenced him to serve ten (10) years imprisonment. The ODPP now seeks a review of that sentence and urge the court to uphold the mandatory minimum sentence. 5.The court is empowered by Article 165 (6) of the Constitution of Kenya 2010 to review a decision by a subordinate court. Article 165 (6) provides:-“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over a superior court.” 6.The Power of the High Court to review sentences is set out in Section 362 of the Penal Code, Cap 63 Laws of Kenya which provides as follows:-“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 in any such subordinate court.” 7.The orders which the High Court may make upon revision are provided by Section 364 of the Penal Code. 8.I have carefully perused the record of the proceedings before the lower court. I am satisfied that the correct procedure was followed in all aspects of the trial. The Respondent was accorded all the fair trial rights as guaranteed by the Constitution of Kenya 2010. 9.The ODPP does not have any issue with the conviction of the Respondent. What they seek to review is the sentence which was imposed by the trial court. 10.It is instructive to note that the Respondent was not convicted on the main charge of defilement. Indeed in acquitting the Respondent of this main charge the learned trial magistrate stated thus“……………I have considered the evidence of all the prosecution witnesses especially PW1 and PW2 it is clear that the medical evidence adduced does not corroborate/support the charge in the main count. I am of the considered opinion that the element of penetration was not proved to the required threshold. The main charge therefore fails.” [Own emphasis] 11.Thereafter the trial magistrate proceeds to consider the merits of the alternative charge and in that regard stated as follows:-“Conclusively therefore I am satisfied that the prosecution has proved their case [the] alternative charge beyond all reasonable doubt. I thus find the accused guilty and convict him of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act N 3 of 2006 and in accordance with Section 215 of the Criminal Procedure Code. The main charge is dismissed ….” [Own emphasis] 12.Section 11(1) under which the Respondent was convicted provides as follows:-“11(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” [Own emphasis] 13.Therefore Section 11(1) does provide for mandatory minimum sentence upon conviction. 14.The ODPP in their letter placed reliance on the decision of the Supreme Court of Kenya relating to mandatory minimum sentences under the Sexual Offences Act as expounded in the case of Republic -vs- Joshua Gichuki Mwangi & 4 Others [2024[ eKLR. 15.I have carefully read the sentence Ruling delivered by the trial magistrate on 29th April 2025. The learned magistrate did correctly capture the evolution of court decisions regarding the constitutionality of mandatory minimum sentences. The trial magistrate did also cite the case of Republic -vs- Joshua Gichuki Mwangi [supra] in which the Supreme Court upheld the constitutionality of mandatory minimum sentences in offences under the Sexual Offences Act. 16.In that regard the trial Magistrate at Paragraph 15 of her sentence Ruling stated as follows:-“………………..Further the Supreme Court have recently in Petition No. E018 of 2023 upheld the mandatory minimum sentences in sexual offences indicating the courts have no jurisdiction to exercise discretion in mandatory minimum sentences.” 17.The trial court did then proceed to impose upon the Respondent the mandatory minimum sentences as provided for by Section 11(1). 18.Based on the foregoing I find that the learned trial magistrate did take into account the pronouncement of the Supreme Court in the Joshua Gichuki Mwangi Case and I further find that the sentence which was imposed upon the Respondent was the mandatory minimum sentence provided for by statute. I find no merit in this application for review of sentence. The same is dismissed in its entirety. No orders on costs. 19.For avoidance of doubt the ten (10) year sentence of imprisonment imposed by the trial court on 29th April 2025 is herby confirmed and upheld. DATED IN NYERI THIS 24TH DAY OF JULY, 2026…………………………MAUREEN A. ODEROJUDGE