Amos Maduhu v Republic

Analysis 5. The revisionary jurisdiction of the High Court is donated by sections 362 and 364 of the Criminal Procedure Code. The Court may call for and examine the record of any criminal proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. It is settled law that revision is not an appeal in disguise. The Court will not interfere merely because it would have imposed a different sentence. See Joseph Nduvi Mbuvi v Republic [2019] eKLR, where the Court held that revision is only available where the sentence is illegal, improper, incorrect or manifestly excessive. 6. In the present case, the offence of traficking in persons, particularly involving children, is a grave offence. Section 3(6) of the Counter Trafficking in Persons Act prescribes a severe custodial sentence, reflecting Parliament’s intention to deter exploitation of vulnerable persons. 7. Section 3(6): A person who finances, controls, aids or abets the commission of an offence under subsection (1) shall be liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life. 8. Save for minimum sentences, sentencing is a discretionary exercise which must be guided by constitutional and statutory principles. Article 50(2)(p) of the Constitution guarantees the right to the benefit of the least severe punishment, while Article 28 underscores the inherent dignity of every person. Further, section 333(2) of the Criminal Procedure Code mandates courts to take into account the period an accused person spent in custody prior to sentencing. 9. In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR: The appellants have been in custody from the date of their arrest on 19th June 2012. 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. The court held 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. 10. The record shows that the Applicant was arrested on 28th April 2022 and sentenced on 18th August 2022. There is no indication on the face of the sentencing record that the learned trial court expressly considered this period. Failure to consider time spent in custody renders the sentence improper in law. 11. The applicant submitted on several mitigating grounds to plead his case for revision of the sentence to a lesser sentence. He has reformed while in prison. The same should be considered by the court. Lastly, the applicant has already served three years in prison. Determination 12. As regards minimum sentences, the Supreme Court has clarified that there is no authority to pass a sentence of imprisonment to a term lower that the minimum provided under the law. See Republic v Manyeso [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) decisions. In Manyeso, the Court said: “ 62. In the Muruatetu directions, this court pronounced itself on the application of the ratio in the Muruatetu case to other statutes prescribing mandatory sentences as follows: “10. It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgement in this matter, or indeed the spirit of the Judgement as a whole, the court has outlawed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4764/eng@2026-02-12 2

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all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. 11. The ratio decidendi in the decision was summarized as follows: "69. 14. Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”. We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.” It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.” [Emphasis added] .... 64. 13. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution.” In Ayako, the Court reiterated: “ 52. In the Muruatetu II Case we reiterated that the rationale in the Muruatetu I Case was only applicable to the mandatory death penalty for the ofience of murder under Section 203 as read with 204 of the Penal Code. Further, we disabused the notion that the rationale could be applied as is to other offences with a mandatory or minimum sentence. 53. In the Republic v Mwangi Case, we explained as follows: “(52) We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4764/eng@2026-02-12 3

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sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance.”” 14. There is, consequently, no authority to reduce a minimum sentence to a different term of years in this case a sentence of imprisonment or thirty (30) years prescribed for the offence of traficking in persons under section 3(6) of the Counter Trafficking in Persons Act. 15. As the accused already benefitted from a sentence lower than the minimum sentence before the clarification of this position by the Supreme Court in the said decisions, and there being no notice by the DPP of intention to seek enhancement of sentence, the Court does not alter the sentence passed by the trial court even it is one which may not have been passed in view of the minimum sentence for the offence under section 3(6) of the Counter Trafficking in Persons Act for which the applicant was convicted. Order 16. Accordingly, the application for review of sentence is declined. The accused will serve the sentence imposed by the trial Court but the said sentence shall take into account the period of pre-trial detention in accordance with section 333 (2) Proviso of the Criminal Procedure Code, and will, consequently, commence on 25/4/2022 when the applicant was first arraigned in court to await his trial. 17. File Closed. Order accordingly. DATED AND DELIVERED THIS 12TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Applicant in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4764/eng@2026-02-12 4

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