https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9130

Mutai v Republic (Criminal Revision Application E006 of 2026) [2026] KEHC 9130 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9130 (KLR) Republic of Kenya In the High Court at Eldama Ravine Criminal Revision Application E006 of 2026 TM Matheka, J June 26, 2026 Between Rueben Kipkurui Mutai Applicant and Republic Accused Ruling 1.The Applicant has filed the application dated 4/2/2026 seeking;a.That the time spent in remand of 5 months 12 days as from 19/12/2022-03/05/2023 and 29/11/2023-27/12/2023 during case pre-trial to be considered part of the sentence and the sentence start from the time he took plea in accordance with Section 333(2) of the Criminal Procedure Code. 2.The application is supported by the affidavit sworn on 4/2/2026; He depones;a.That I am a Kenya male adult of sound mind and therefore duly competent to make oath in a court of law.b.That I am the applicant herein and was initially arraigned in court and charged before SPM’s Court at Eldama Ravine to serve five(05) years imprisonment for the offence of Sexual assault contrary to section 5(1)(b).c.That I pray that the time spend in remand of five (05) months and twelve (12) days during case pre-trial to be considered part of the sentence.d.That, the facts stated herein above is true to the best of my knowledge, information belief and understating. 3.I have perused the lower court file. The applicant was charged with:-Count 1Sexual Assault contrary to Section 5(1)(b) as read with Section 5(2) of the Sexual Offences Act No. 3 of 2006.That on the 17th day of December, 2022 at Sinonin Village in Koibatek Sub-County within Baringo County, intentionally and unlawfully used his fingers to penetrate the Vagina of Z.H of a child aged 10 years.Alternative ChargeCommitting an indecent Act with a child Contrary to Section 11(1) of the sexual Offences Act No. 3 of 2006.On the 17th day of December 2022, at Sinonin village in Koibatek Sub-county within Baringo County, intentionally and unlawfully caused his fingers to come in contact with the vagina of Z.H a child aged 10 years. 4.He was tried, convicted and sentenced to 5 years imprisonment on 27/12/2023. 5.Section 5(2) of the Sexual Offences Act states ;Sexual assault(1)Any person who unlawfully—(a)penetrates the genital organs of another person with—(i)any part of the body of another or that person or(ii)an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body; is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life. 6.The trial court stated that he considered the circumstances of the offence in sentencing him to 5 years’ imprisonment. It is evident that the Applicant ought to have been sentenced to 10 years imprisonment. 7.The victim was a 10 year old child. The applicant was liable to a term of life imprisonment. 8.The application is brought under s. 333(2) of the Criminal Procedure Code which states(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 9.The period spent in custody prior to the conviction was taken into account in arriving at the sentence the applicant is serving right now, as it is evident he ought to have received a minimum sentence of 10 years’ imprisonment. 10.Review of his sentence would be inappropriate and the Application is declined. RULING, DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDAMA RAVINE ON 26TH JUNE 2026.MUMBUA T. MATHEKA JUDGECourt Assistant – IanApplicant – presentMs. Omari for state