Sgw v Republic

The Law 5. This court is empowered by Article 165(6) of the Constitution of Kenya to review a decision by a subordinate court. Article 165(6) provides:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 6. The applicant herein was convicted in Chief Magistrate Court in Gatundu in Criminal (SO) Case No. 9 of 2018 with the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006. The applicant was sentenced to twenty-five (25) years imprisonment and being aggrieved by the conviction and sentence appealed to the High Court in Kiambu being Criminal Appeal No. E075 of 2021 whereby the court upheld the conviction and substituted the sentence of 25 years with a sentence of 15 years to run from the date the sentence was imposed by the trial court. The appellate court whilst substituting the sentence took into consideration the period the applicant had spent in custody from 28th May 2018 to the time he was sentenced on 14th August 2019. 7. Article 50(2)(q) of the Constitution is of relevance which gives a convicted person two options: to appeal or to apply for review in a higher court. He chose to appeal to the High Court Kiambu where his appeal was heard and determined. The court reduced the sentence of twenty-five (25) years to fifteen (15) years. The conviction was upheld under Article 50 (2). The applicant has exhausted his remedy of appeal and is not open to review. It is not in dispute that the High Court dealt with the sentence in favour of the accused. As such, this application is not supported by the law. 8. It is important to state that the applicant having lodged an appeal at the High Court in Kiambu cannot come back to this court to seek for orders of resentencing as this court has no power to review the orders of a court with concurrent jurisdiction. 9. Even assuming that this court was possessed of the requisite jurisdiction, it is noted that the recent Supreme Court decisions in defilement cases held that the sentence for the offence of defilement is the one provided under Section 8 of the Sexual Offences Act. In the Petition R vs Julius Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court set aside the sentence of 40 years imprisonment reviewed by the Court of Appeal and substituted it with life imprisonment on grounds that Section 8 of the Act forms the basis of sentencing convicts in cases of defilement. 10. This court is bound by decisions of the Supreme Court under Article 163(7) of the Constitution. As such I find this application misconceived and incompetent and I hereby strike it out. 11. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF NOVEMBER 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17358/eng@2025-11-20 2

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