Muchira v Republic (Criminal Miscellaneous Application E028 of 2026) [2026] KEHC 6714 (KLR) (29 April 2026) (Ruling) Neutral citation: [2026] KEHC 6714 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E028 OF 2026 TW CHERERE, J APRIL 29, 2026 BETWEEN JOB MUCHIRA ........................................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. In an undated application filed before this court, the Applicant, Job Muchira, seeks sentence review arising from Nyamira MCSO E070 of 2022 in which he was convicted and sentenced. The judgment of the court reveals that Applicant was sentenced to serve 10 years imprisonment for rape and 5 years in the alternative countof indecent assault of the same claimant. 2. This Court exercises its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code to examine the legality, correctness and propriety of those proceedings. 3. The conviction on the main count was for the ofience of rape under section 3 of the Sexual Offences Act, No. 3 of 2006, which provides: 3. (1) A person commits the ofience termed rape if (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6714/eng@2026-04-29 1
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(2) In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act. (3) A person guilty of an ofience under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 4. The sentence imposed on the main count accords with the statutory framework, and there is no demonstrated illegality, impropriety, or material irregularity that would warrant this Court’s intervention in the exercise of its revisionary jurisdiction; accordingly, the conviction and sentence on the main count are upheld. 5. The record shows that, notwithstanding the conviction on the main charge, the trial court proceeded to enter a conviction and impose sentence on the alternative count. 6. The Court of Appeal in David Ndumba v Republic [2013] eKLR, citing MBO v Republic [2010] KECA 468 (KLR), held: “ The practice of charging ofiences in the alternative is one of abundant caution and that is why no finding is made on such charge once there is ample evidence to support the main charge.” 7. Having found that the main charge of rape was proved, the trial court had no basis in law to proceed to convict and sentence on the alternative count. The conviction on the alternative charge is therefore unlawful and the sentence of five (5) years imposed thereon is irregular. 8. In the result, the Court makes the following orders: 1. The conviction and sentence of five (5) years’ imprisonment imposed on the alternative count is hereby quashed and set aside. 2. The conviction and sentence on the main count of rape are hereby upheld. DELIVERED AT NYAMIRA THIS 29TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terer/Ruth Applicant - Absent For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6714/eng@2026-04-29 2
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