Peter Kimeu Njogu Alias Gabriel Ngotho Macharia Applicant v Republic

4. The respondent opposes the instant application vide her Replying Affidavit dated 6th October 2025 and states that the offences the applicant is charged with are felonies. In Count I the applicant was convicted of the offence of defilement, whereas a convict is liable to imprisonment of not less than fifteen years as the victim was found to be 16 years at the time of the offence whereas in Count II of incest, one is liable to a sentence of not less than ten years which can be enhanced to life imprisonment where the victim is less than 18 years. In Count II the victim was found to be 14 years hence the sentence ought to have been life imprisonment. 5. The respondent concedes to the time spent in remand to be factored in but opposes the prayer that the applicant serves his remaining sentences under community service or probation. The respondent argues that recent Supreme Court decisions have held that sentences in Sexual Offences Act are valid and courts have no discretion to give any other sentences other than what is provided for in the Act. Accordingly, placement on probation is not tenable as it is not provided for in the Sexual Offences Act. 6. Parties put in written submissions. The Applicant’s Submissions 7. The applicant relies on the Sentencing Policy Guidelines (2023) and the cases of SKM v Republic [2020] KEHC 1657 (KLR) and Peter Ngui Nyamu v Republic [2020] eKLR and submits that the trial court imposed consecutive sentences resulting in a cumulative 25 years which sentence is unjust and excessive as the offences were committed in close proximity and involved similar circumstances. The applicant further submits that he is a first offender, remorseful and has rehabilitated. The Respondent’s Submissions 8. The respondent refers to the cases of Supreme Court Petition No. E002 of 2024 Republic v Evans Nyamari Ayako and Petition No. E013 of 2024 Republic v Julius Kitsao Manyeso and submits that probation is not a tenable sentence under the Sexual Offences Act. The Law 9. 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. 10. The applicant herein was convicted in Chief Magistrate Court Gatundu in Criminal (SO) Case No. 18 of 2017 with the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006 in Count I. In Count II, he was convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act and in Count III, with the offence of killing an unborn child contrary to Section 228 of the Penal Code. The applicant was found guilty and convicted of the offence of defilement and incest but acquitted of the offence of killing an unborn child. The applicant was sentenced to 10 years and 15 years imprisonment respectively and the trial court ordered that the sentences do run consecutively. 11. Article 50 of the Constitution prohibits review where a convict has gone through an appeal process. It provides:(2) Every accused person has the right to a fair trial, which includes the right:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3574/eng@2026-03-12 2

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(q) If convicted, to appeal to, or apply for review by a higher court as prescribed by law. 12. In the instant matter the applicant states that the he not appealed against the decision of the trial court and thus the application for review is properly before this court. 13. Section 333(2) of the Criminal Procedure Code provides:“ Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 14. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 15. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another v Republic [2018]eKLR where the Court of Appeal 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.” 16. The same court in Bethwel Wilson Kibor v Republic [2009]eKLR expressed itself as follows:“ By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3574/eng@2026-03-12 3

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We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.” 17. According to The Judiciary Sentencing Policy Guidelines: “ The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 18. The applicant was arrested on 3rd August 2017 and plea was taken by the trial court. He was granted bond of Kshs. 300,000/- with one surety of similar amount. On 12th January 2018, the applicant requested the trial court to review his bond which was done. The bond was reviewed to the amount of Kshs. 230,000/- with a surety of a similar amount. There is no evidence that the applicant was ever released on bond despite the orders made in his favour. It is possible that the applicant failed to raise a surety. 19. The trial court delivered its judgment on 15th October 2019 and sentenced the applicant on 22nd October 2019. It is evident that the applicant spent two (2) years and two (2) months in custody. By virtue of Section 333(2) of the Criminal Procedure Code, this duration ought to have been considered by the trial court during sentencing. 20. I have perused the court record and noted that during sentencing, the court said that the applicant owed a responsibility and care towards the victims. The trial court further considered the relevant provisions of law and then sentenced the applicant to ten (10) and fifteen (15) years imprisonment in line with Section 8(3) and 20 of the Sexual Offences Act. It is evident that the trial court did not take into consideration the time spent by the applicant in custody. This court is duty bound to deal with any issue that was not addressed by the trial court. 21. The applicant further argues that the sentences in the two counts ought to run concurrently instead of consecutively because the offences emanate from one transaction. 22. The Court of Appeal in Peter Mbugua Kabui v Republic [2016] eKLR stated:As a general principle the practice is that if an accused person commits a series of offences at the same time in a single act/transaction concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. In the instant case, the offences were not committed at the same time and in the same transaction; they occurred on diverse dates. Furthermore, the acts complained of were perpetrated against different complainants. Thus we find that the trial court and the High Court did not err in directing or ordering a consecutive term of imprisonment for the conviction in the two counts. It is our considered view that the exception in Section 1493) of the Criminal Procedure Code is inapplicable to this case in light of the provision of Section 7(1) of the Criminal Procedure Code. We further observe that Section 14 of the Criminal Procedure Code stipulates that for purposes of an appeal, the aggregate of consecutive https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3574/eng@2026-03-12 4

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sentences imposed in case of convictions for several offences at one trial, shall be deemed to be a single sentence. We take the view that given the circumstances of this case, the consecutive sentences totalling to 20 years imposed on the appellant, cannot be said to be excessive. In any event, as we have pointed out earlier, severity of sentence is a question of fact and this court has no jurisdiction to consider issues of fact in a second appeal. Is the sentence illegal or unlawful. We find that the sentence was legal and lawful, and we have no legal basis for interfering with the same. 23. It is important to note that the trial court sentenced the applicant to 10 years imprisonment on Count I and 15 years on Count II. The sentences were to run consecutively. In directing that the sentences run consecutively, the learned magistrate stated that the incidental offences were committed over a long period of time and in different durations. Section 8(4) of the Sexual Act provides for a sentence of not less than fifteen years while Section 20 provides for a prison term of not less than ten years. Further, the acts complained of were perpetrated against different complainants and they occurred on different diverse dates. The victims were children aged 13 and 16 years who must have been traumatised by the sexual assaults that took place severally before the applicant was arrested and charged. The consecutive sentences of a total of twenty-five (25) years imposed on the applicant are not excessive sentences and are within the law. The sentences were reasonable, lawful and commensurate with the offences. In my considered view, the sentences ought not to be reviewed. 24. The applicant has further argued that he should serve the remainder of his sentence as community service or probation. Recent Supreme Court decisions have held that the sentence for the offence of defilement is the one provided under Section 8(1) and 8(3) of the Sexual Offences Act. In the Petition R v 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. This court is bound by decisions of the Supreme Court under Article 163(7) of the Constitution. I therefore decline to review the sentences of imprisonment to non-custodial ones due to the fact that this court has no such powers of review. 25. However, having found that the trial magistrate failed to take into account the period of two (2) years and two (2) months spent in remand pending disposal of the trial, I hereby order that the twenty five (25) years imprisonment sentence the applicant is currently serving, do commence from 3rd August 2017, being the date of arrest. 26. The application is partially successful. 27. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF MARCH 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3574/eng@2026-03-12 5

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