Mbuvi v Republic (Criminal Miscellaneous Application E061 of 2024) [2025] KEHC 14341 (KLR) (21 May 2025) (Ruling) Neutral citation: [2025] KEHC 14341 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL MISCELLANEOUS APPLICATION E061 OF 2024 NIO ADAGI, J MAY 21, 2025 BETWEEN PAUL MAKAU MBUVI ........................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant was charged with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. Particulars are that on the 1 3th day of March 2009 at Kithendu Sublocation, Kithimani location in Yatta district within Eastern Province intentionally and unlawfully did an act which caused penetration of his genital organ (penis) into the genital organ (vagina) of N.K (name withheld) a girl aged II years. 2. In the alternative, the Applicant was charged with the offence of committing an indecent act to a Child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars were that on 13th day of March, 2009 at Kithendu Sub-location, Kithimani location in Yatta District within Eastern province committed an indecent act to N.K (name withheld) by touching her private parts namely vagina. 3. The prosecution called 5 witnesses to support its case and the Applicant was convicted and sentenced to life imprisonment on 13th May 2010. 4. The Applicant being dissatisfied with the conviction and sentence file a 1st Appeal to the High Court at Machakos in Criminal Appeal No. 108 of 2010. The high court being a court of Ist appeal, evaluated the evidence and thereafter dismissed the appeal in its entirety on 19th December, 2014 as the said appeal lacked merit. 5. Being dissatisfied with the High Court judgment, the Applicant filed a 2nd Appeal to the Court of Appeal at Nairobi in Criminal Appeal No. 36 of 2021. After hearing of the 2ndAppeal the Court of Appeal was satisfied as were the Trial Court and the High Court that the offence of defilement was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14341/eng@2025-05-21 1
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proved and that the Applicant defiled N.K (name withheld). The appeal at the Court of Appeal failed in its entirety and therefore dismissed on 22nd June, 2023. 6. The Applicant has now filed the instant notice of motion application dated 30th May, 2024 and supporting affidavit attached thereto of even date. The Applicant seeks that this honourable court reviews his sentence to a lenient sentence putting into account the time served since date of arrest on 13th March 2009 as enshrined in Section 333(2) of the CPC. The Applicant submitted that the rehabilitation accorded to him is favourable for release and reintegration and may the sentence imposed take due account of the need to accord the Applicant an opportunity and a chance to rehabilitate in line with Article 10 (3) of the I.C.C.P.R on the essential aims of imprisonment as shall be to reform the offender and promote social rehabilitation. The Applicant referred finding of the Court of Appeal in the case of Makumbi Subui Wanyeso v. R; MSA cr. App. No. 110 of 2022 7. The Applicant herein relies on the decision in Francis Karioko Muruatetu and Others V. Republic. Petition 15 & 16 of 2015 stating that the mandatory nature of sentences was declared unconstitutional. He submits that the Supreme Court ordered that these matters be returned to the trial courts for mitigation and resentencing. 8. The Applicant has to be informed that the Supreme Court has since clarified that the Muruatetu case does not apply to all other cases including defilement cases. 9. According to this court, the Applicant has exhausted his Right of Appeal in the High Court and Court of Appeal. The two appellate courts fully analysed the evidence of the prosecution case and rightfully concluded that the Prosecution proved its case beyond reasonable doubt proving all the ingredients of defilement. 10. The Applicant cannot come back to this court for review because this court is functus officio. If he has any grievances, he can only move the Supreme Court. For the above reason’s the application for review is unmerited and declined. 11. File closed. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 21ST MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 21ST MAY 2025 In the presence of : In person......... for Applicant Ms. Agatha............ for Respondent Milly............... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14341/eng@2025-05-21 2
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