SMM v Republic (Criminal Case E199 of 2024) [2025] KEHC 17265 (KLR) (8 October 2025) (Ruling) Neutral citation: [2025] KEHC 17265 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL CASE E199 OF 2024 TM MATHEKA, J OCTOBER 8, 2025 BETWEEN SMM ........................................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged with Incest by male person contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The Particulars were that on the 25th day of February, 2012 at Kyangawi village, Iuani Location in Makueni District within Makueni County intentionally and unlawfully caused penetration of his genital organs to FMM who was his sister aged 13 (thirteen) year at that time. 2. He was found guilty convicted and sentenced to 20 years imprisonment on 6/12/2012 for Incest Contrary to Section 20(1) of the Sexual Offences Act. 3. The applicant has brought this Notice of Motion (no date) under Art. 50(2) q of the Constitution. He seeks :i. That the Hon. court may be pleased to make an order to hear and determine this application and on priority basis. ii. That the Hon. Court may be pleased to make an order to call upon the applicant from custody for hearing and orders. iii. That the Hon. Court may be pleased to make an order to invoke section 333(2) of the C.P.C hence the time spent in remand custody before conviction. iv. That the Hon. Court may be pleased to make an order and invoke section 35v of the Penal Code thus the entire time served since he was deprived his liberty and award discharge either absolute or conditional. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17265/eng@2025-10-08 1
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On the grounds that:- 4. 5. 1. The applicant avers that he is first offender remorseful is seeking the leniency of the court 2. The applicant avers he is reformed, rehabilitated and equipped with skillful knowledge and is ready to rejoin the society as a law abiding citizen. The application is supported by affidavit (no date) where he depones:1. That I am a male Kenyan Citizen of sound mind and duly competent to swear this affidavit. 2. That vides Cr. Case NO. 84 of 2012 at Makueni Law Court, I was arrested on 25/2/2012 and charged with offence of Incest C/S 20(1) of the SOA No. 3 of 2006 whereby I pleaded guilty as charged. 3. That in respect of the fore stated I was convicted and sentenced to serve 20 years imprisonment on 6/12/2012. 4. That in respect of fore stated the time I spend in remand custody was not put into consideration during the sentencing exercise. 5. That having been dissatisfied, I filed an appeal application at Machakos High Court Vide HCCRA No. 108 of 2013 which was dismissed entirely. 6. That in respect of fore stated I now approach this court by way of revision of the sentence pursuant to section 333(2) of the C.P.C and section 35 of the penal code. 7. That this Hon. Court has unlimited original jurisdiction and wide discretionary powers to deal with the matters prayed herein. 8. That what deponent herein is true to the best of my knowledge, information and belief. Article 50(2)(q) of the Constitution provides; (q) q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law; 6. The applicant was convicted by the subordinate court. He exrcised his right of appeal before this court. He clearly states that he filed an appeal in the High Court which was dismissed. 7. The import of that is that this court upheld both the conviction and sentence meted out by the subordinate court. 8. He now seeks to exercise his right to review of the sentence. This is subject to the law. The law is that the revision power of this court is anchored at Article 165 (6) & 7 of the Constitution – the court has power to revise orders of subordinate courts. 9. This court has no jurisdiction over superior courts 10. The applicant has recourse in the Court of Appeal or the Power of Mercy Committee. 11. In the circumstances the Application is declined. 12. Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY ON 8TH OCTOBER, 2025 MUMBUA T MATHEKA https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17265/eng@2025-10-08 2
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JUDGE Chrispol Court Assistant Accused – present Kazungu for State https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17265/eng@2025-10-08 3
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