https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9017

Rukwaro v Republic (Criminal Revision E007 of 2026) [2026] KEHC 9017 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9017 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E007 of 2026 PN Gichohi, J June 24, 2026 IN THE MATTER OF ARTICLES 22 (1), 23, 25(c), 27, 28, 50 (2) (p), 159, 160 AND 165 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF PARAGRAPH 4, 8,14,4-8.18,4.8.21,48,23,4.8.25 AND 4.8.26 OF THE SENTENCING POLICY GUIDELINES (2023) Between Samuel Gachungi Rukwaro Applicant and Republic Respondent Ruling 1.The Applicant moved this court by way of an undated Notice of Motion, the Applicant seeks that the sentence of 20 years imprisonment passed by the trial court in Nakuru CMC Criminal Case No. E171 of 2021 be reviewed downwards as the court may deem fit. 2.He states that he was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006, where he was convicted and sentenced to 20 years imprisonment. 3.Ms Maurine Anyumba, Principal Prosecution Counsel for the Respondent, filed Grounds of Opposition dated 23rd February 2026. She states that Section 8(3) of the Sexual Offences Act provides for a minimum sentence of 20 years. 4.That whereas the Applicant was considered a first offender and sentenced to the said 20 years imprisonment, the sentencing is a discretionary measure of the trial court, and the applicant has failed to satisfy this court of any impropriety in the conduct of the trial magistrate in sentencing for this court to intervene. 5.It is her position that for this court to exercise its revisionary jurisdiction, it must appear that some error has been made by the trial court in the exercise of the said discretion, or some material consideration was not taken into account, which is not the case herein. 6.In this case, she states that the applicant has not satisfied the existence of new or compelling evidence to impugn the sentence of the trial court. 7.Urging this court to dismiss the application, the Respondent cites the Supreme Court of Kenya decision in Republic v. Joshua Gichuki Mwangi (Petition E018 of 2023) and states that the Apex Court guided on the issue of mandatory minimum sentences under the Sexual Offences Act, which sentences are not unconstitutional, nor do they violate the principle of individualised sentencing. 8.In response thereto, the grounds of opposition, the Applicant filed his submissions on 10th March 2026. He submitted that he does not challenge the conviction, arguing that the present application is limited strictly to the propriety and legality of the sentence imposed. 9.He submits that while the State prescribes a minimum sentence, that sentence must still comply with Article 25 (c) of the Constitution on the right to fair trial, Article 28 regarding human dignity, Article 50 (2) (q) on the Right to benefit from the least severe punishment and the principle of proportionality in sentencing. 10.He submits that sentencing is not a mechanical exercise and therefore, even where a minimum sentence exists, the courts must still consider mitigating factors, proportionality and also ensure the sentence is just in the circumstances. 11.To support that argument, he cites the case of Republic versus Joshua Gichuki Mwangi, arguing that the Supreme Court did affirm the constitutionality of minimum sentences. 12.On proportionality and comparative jurisprudence, he urges this court to consider the medical history/health status of the applicant; the circumstances surrounding the offence; time already served; and the Rehabilitation potential. He therefore urges this court to interrogate whether the sentence imposed meets the ends of justice in the particular circumstances. 13.In conclusion, he relies on the annexures to his submissions and prays that his application be allowed. Determination 14.This court has considered the application herein, the grounds of opposition and the lower court record regarding the sentencing to confirm the illegality or otherwise of that sentence. Indeed, Section 8 (3) under which he was convicted and sentenced provides that:-(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 15.In this case, the court record shows that the accused person was a first offender. Given a chance to present his mitigation, he stated that he was leaving it to the court. Having considered the matter, the trial court sentenced him to serve 20 years imprisonment with the sentence. He was given 14 days to appeal. 16.There having been no mitigation, the Applicant cannot belabour that issue. In any event, the trial court was mindful of the mandatory nature of the sentence provided for under Section 8 (3)of the Sexual Offences Act. There is no error or irregularity in that sentence or the manner in which the learned Principal Magistrate Hon V.O. Adet handled it. 17.However, though apparently aware that the period spent in custody should be considered in that sentence, the charge sheet shows that he was arrested on 6th December 2021 and arraigned in court for plea on 7th December 2021. 18.There is no record to show that the Accused/Applicant went out on bond. Accordingly, the learned Magistrates have indicated that the sentence should run from the date of arrest, in line with the Court of Appeal decision in Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR), where it was held that:-“…..The second is the failure by the Court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code…By dint of section 333(2) of the Criminal Procedure Code, the Court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial Court. With respect, there is no evidence that the Court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the Court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the Court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 19.In the circumstances herein, the Applicant’s application is hereby dismissed, save that the sentence of 20 years imprisonment shall run from the date of arrest, that is, 6th December 2021. DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JUNE, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 24TH DAY OF JUNE, 2026.………………………DR. JOSEPH SERGONJUDGE