[2023] KEHC 23178 (KLR)

Republic v Wanjama (Criminal Revision E126 of 2023) [2023] KEHC 23178 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23178 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Revision E126 of 2023

CW Githua, J

October 5, 2023

Between

Republic

Prosecutor

and

Gerald Njoroge Wanjama

Accused

Ruling

1. By a Notice of motion dated 1st March 2023, the applicant, Gerald Njoroge Wanjama moved this court seeking review of his sentence imposed by the trial court in Murang’a sexual offence No. 6 of 2021.

2. The lower court record shows that the applicant had been charged in the main court with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual offences Act (hereafter SOA) and in the alternative with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

3. After full trial, the applicant was acquitted of the main count but was convicted in the alternative count. He was sentenced to serve five years imprisonment. He now urges this court to reduce his sentence or substitute it with a non-custodial sentence of probation or community service orders or any other sentence the court deemed fit to impose on grounds that he was a first offender and the bread winner for his family and aging parents.

4. Further, the applicant contended that having been in prison for the last two years, he was now reformed and fully rehabilitated. In support of his application, he placed reliance on the persuasive authorities of Philip Mueker Maingi & 2 othersvs Republic (2023)eKLR; Joshua Gachoki Mwangivs Republic (2015) and Edwin Wachira & 9 othersvs DPPPetition No. 97 of 2021 all dealing with the issue of minimum mandatory sentences.

5. At the hearing, the applicant replicated the grounds stated on the face of his application and his brief written submissions and on her part, learned prosecution counsel opposed the motion and urged the court to find that the sentence imposed by the trial court was lawful and that in imposing it, the learned trial magistrate properly exercised his discretion after taking into account all mitigating factors offered by the applicant. She urged me to find that the sentence was infact lenient and should not be disturbed.

6. I have carefully considered the application and the rival submissions made by both parties. I have also read the ruling by the trial court in which the impugned sentence was meted out. I find that the application invokes the revisional jurisdiction of this court which is donated by Section 362 as read with Section 364 of the Criminal Procedure Code (CPC) which empowers this court to call for and examined the record of the lower court in Criminal proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order made by the trial court or the regularity of any proceedings before the lower court.

7. I must state at the outset that it is trite that sentencing is dependent on the discretion of the trial court.This court in the exercise of its revisional jurisdiction as stated earlier is only mandated to revise the sentence of the trial court or any other orders made by that court if it was satisfied that the sentence or order was illegal, or that it was a product of some mistake or irregularity in the proceedings.

8. In this case, the court record shows that in sentencing the applicant, the learned trial magistrate fully appreciated the sentence prescribed by the law for the offence of committing an indecent act with a child contrary Section 11(1) of the Sexual Offences Act. Although the law prescribed a minimum mandatory sentence of ten (10) years imprisonment, the learned trial magistrate guided by decisions of the High Court which declared mandatory minimum sentences prescribed in the Sexual Offences Act unconstitutional which were binding on him, exercised his discretion and imposed a sentence of five years imprisonment.

9. My perusal of the court record does not show that in imposing that sentence, the learned trial magistrate either applied wrong legal principals or considered irrelevant facts. I do not also find any indication that the learned magistrate abused his discretion in any way.

10. I have taken into account the grounds relied upon by the applicant in the instant application including the claim that he was a first offender; that he was remorseful and that he was a young man building a foundation for himself and his family. Unfortunately, these mitigating factors were not presented to the trial court when the applicant was given an opportunity to mitigate before sentence was passed. But this does not mean that the applicant was estopped from raising the said factors before this court but in my view, they cannot be used as a basis for sentence review in the exercise of this courts revisional jurisdiction.

11. That said, I find that in passing the sentence, the learned trial magistrate failed to take into account the period of about one month that the applicant had spent in lawful custody before he was released on bond as required by Section 33(1) of the Criminal Procedure Code. This was an error that must be corrected by this court in the exercise of its revisional jurisdiction.

12. Given the forgoing, I find no legal basis to interfere with the sentence imposed by the trial court in this case. Infact, I agree with learned prosecution counsel that the sentence was quite lenient given the nature of the offence subject of the appellants conviction and the circumstances in which it was committed. The applicants motion is thus allowed to the extent that the sentence of the trial court shall take into account the period he had spent in lawful custody, that is, the period between 28th January, 2021 when he was arrested and 23rd February, 2021 when he was released on bond.It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 5th day of OCTOBER, 2023. C. W. GITHUAJUDGEIn the Presence of__:Ms Muriu for the stateApplicant presentMr. Quinteen Court Assistant