Benard Mutuku Muasya v Republic

4. In his supporting Affidavit, the Appellant depones that he has undergone rehabilitation programs in prison hence he has reformed both spiritual and socially. He has a clean record in prison and relates well with prison administration and his fellow prisoners too. That in the circumstances he prays that this court do allow him to serve the remainder of the term on non-custodial imprisonment in order that he may take care of his needy family who were totally relying on him for daily bread and education of his children. That he has a very needy family who were really depended on him for survival. 5. The Applicant contends that this court has jurisdiction to review the Applicant's sentence by granting a probation order by dint of the Probation of offenders Act Cap 64 Section 5(1) that states as follows: (1) "A probation order shall have effect for such period, of not less than six months and of not more than three years, from the date of the order as may be specified therein, and shall require the probationer to submit during that period to the supervision of a probation officer appointed for or assigned to the district or area in which the probationer will reside after the making of the order, and shall contain such provisions as the court considers necessary for securing the supervision of the offender, and such additional conditions as to residence and other matters as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition of the same offence or the commission of other offences. " 6. The application is opposed by the Respondent who argue that the Applicant makes reference to Section 3 of the Probation of Offenders Act which does not provide for any orders that this court can make. 7. Instead, the Probation of Offenders Act provides for when a trial court either the subordinate court or the high court seeks to sentence an offender after trial. The Act does not make proviso for when the offender seeks to have his sentence reviewed from custodial to non-custodial. 8. That, the Applicant was convicted for defiling a minor aged 17 years. The said victim conceived out of the said act. The prosecution proved its case beyond reasonable doubt and the Applicant was convicted and sentenced to 7 years imprisonment. 10. The Respondent contends that the 7-year sentence imposed on the Appellant on the face of it was an illegal sentence. The minor was 17 years of age. The law provides that upon conviction; the imprisonment should be a term not less than 15 years. 11. The Respondent submits that the Applicant having undergone rehabilitation and reformation, it does not negate the offence that was committed against a young girl of tender years. Looking at the circumstances of this case, the Applicant was sentenced to a very lenient sentence as per the law. The Applicant has further not provided to this court any viable reason to warrant this court to consider a non-custodial sentence. 11. The Respondent submits that the Applicant took advantage of a young girl who thereafter conceived as a result of the acts of the Applicant. The Applicant was rightfully sentenced to a custodial sentence for his actions. The Respondent urge the court not to interfere with the custodial sentence meted to the Applicant. 12. When the application came up for directions, the court requested that a Probation Officer’s report be availed in court for consideration on suitability of the Applicant being admitted to non-custodial sentence. The report dated 12th March 2025 was filed in court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14374/eng@2025-07-17 2

page 2 of 3

13. Parties filed their respective submissions to the application which I have duly considered. The report is responsive and recommends the Applicant for a probation sentence. 14. The Applicant seeks a sentence review to have his remaining part of his custodial sentence being served under a probation order. Although the Applicant claims to have undergone rehabilitation programs in prison hence, he has reformed both spiritual and socially and that he has a clean record in prison and relates well with prison administration and his fellow prisoners too. He did not provide anything such us certificates he has attained in various rehabilitation programmes or any recommendation from the Prison’s Authority. 15. A Probation Report was also indicating that the Applicant is left to serve 3 years before release. 16. According to the said report, the Applicant has been receptive to rehabilitation programs and is ready to serve a non-custodial sentence. He is remorseful and deeply regrets his actions. His family and the local administrations are also ready to facilitate his progressive reintegration upon release. 17. While the Probation Report indicates that the Applicant has demonstrated good behaviour, I must consider the nature of the offense and the sentence already imposed. 18. The Applicant was convicted of defilement of a girl aged then 17 years who as a result of the defilement became pregnant. The Applicant was sentences to 7 years imprisonment. 19. Section 8(1) are read with Section 8(4) of the Sexual Offences Act provides that: 1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 20. On the above provision, it is clear that the trial court imposed an unlawful sentence which was outside the law. Given the leniency of the original sentence, the time the Applicant has already served is insufficient to warrant an early release. The custodial sentence remains appropriate in ensuring accountability and deterrence. 21. As such, I decline to review the Applicant’s custodial sentence to non-custodial sentence. He shall continue to serve the remainder of his sentence in custody. 22. Consequently, I find that the Applicant’s undated application lacks merit and is dismissed in its entirety. 23. The trial court’s file shall be returned to the lower court for safe custody. 24. Orders accordingly. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH JULY 2025 In the presence of : https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14374/eng@2025-07-17 3

page 3 of 3