Abdalla Mutua v The Republic

same place and time as in the principal charge he caused his penis to touch the vagina of SB a child aged 15 years. 3. His appeal to this court in HCCRA No. 13 of 2023 on conviction was unsuccessful. However, the court reviewed his sentence from 15 years’ imprisonment as passed by the Magistrate’s court and substituted it with a term of ten years’ imprisonment. 4. He now comes back to this court to try his luck for commutation of the remainder of his sentence from imprisonment to probation. His application is dated 18th July 2025 and is stated to be pursuant to section 364 of the Criminal Procedure Code. The grounds in support thereof are expounded in his supporting affidavit sworn on 18th February 2025. They are that based on the circumstances of his case and extenuating factors featured in it and his character and antecedents, he seeks for a probation placement as provided in Clause 9.3 of the Sentencing Policy Guidelines. That through the transformative skills he has acquired while in prison it had brought him to a line of repentance where he wishes to offer his apology to the victims and to the community, State and even this court. 5. The application was canvassed through written submissions filed by the applicant. Learned counsel for the respondent opted not to file submissions on the application. 6. In his submissions, the applicant outlines some four factors upon which he has based his application under section 4(1) of the Probation of Offenders Act (Cap. 64) Laws of Kenya. Section 4 of the Act provides for the power of the court to permit for conditional release of offenders as follows: 4. Power of court to permit conditional release of offenders 1. Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may— a. convict the offender and make a probation order; or b. without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit. 2. Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit. 3. Before making a probation order under subsection (1) or (2), the court shall explain to the offender in ordinary language the effect of the order and that, if he fails in any respect to comply therewith or commits another offence, he will be liable to be sentenced for the original offence, and the court shall not make a probation order unless the offender expresses his willingness to comply with the provisions of the order. 4. Where any offender against whom a probation order has been made commits a subsequent offence or fails to comply with any of the terms of the probation order, any sum the subject https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7414/eng@2026-04-30 2

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of any recognizance entered into by or on behalf of the offender may, in the discretion of the court, be forfeited. 5. Before making a probation order under subsection (1) or (2), the court may consider the view of the victim as contained in the pre-sentence report prepared pursuant to subsection (6). 6. Where a subordinate court or a superior court considers making a probation order, it shall, before making such order, direct a probation officer to conduct a social inquiry into the circumstances of the case and the accused and make a presentence report of the findings to the court. 7. A probation officer shall, while acting on the authority of the court, have the right to access records and any other necessary information from any person or authority having such records or information for the purpose of preparing a social inquiry report. 8. A pre-sentence report shall include a recommendation as to the suitable period of supervision, rehabilitation programmes and any measures necessary to reduce the risk of re-offending. 8. The applicant submits that he qualifies for release under this section based on his character, antecedents and home surroundings. He submits that at the time of sentencing he had no records of previous convictions as stated by the prosecutor in the trial court and that the pre-sentence report also indicated that the community wished for his release as he was a law-abiding citizen and respected within the community. 9. The applicant submits with respect to the lifelong implications of his actions upon the offender that he is most remorseful for the same. 10. The applicant submits that he has no issue with his mental or physical health. He reiterates his mitigation before the trial court that he has a wife and children, he is illiterate and without parents with some of the children sitting for national examinations at the time. 11. The applicant has cited some High Court decisions in which the courts commuted terms of imprisonment to probation placement. 12. The offender further submits that the trial court failed to consider the period he had spent in custody as per section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. He therefore asks this court to revise the sentence and take the same into account. 8. I have considered the application and his submissions by the applicant urging the same. It is true that on the strength of the reasoning and decision of the Supreme Court in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, (Muruatetu) the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences, including for sexual offences, such as the one the applicant was convicted of by the lower court and the subject of the application of herein. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that the principles on review of sentence in Muruatetu only applied to murder cases, and not to any other type of case. The Supreme Court stated thus: “ It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7414/eng@2026-04-30 3

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reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it … 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.” 8. The Supreme Court has subsequently in its decision in the case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12th July 2024 reiterated with specific reference to sexual offences the position that Muruatetu is not applicable in cases under the Sexual Offences Act. 9. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant for a review of sentence to commute the remainder of his prison term to probation is without merit and the same is rejected. 10. Another reason why this court would not review the remainder of the prison term and commute the remainder to probation is that I find no jurisdiction for this court to review its sentence. Having reviewed the lower court sentence from 15 years’ imprisonment to 10 years’ imprisonment, the applicant should count himself lucky and be satisfied with that position. 11. The final prayer is that the trial court did not consider time spent in custody prior to conviction while passing the sentence. I have looked at the trial court record and the issue raised by the appellant bears no truth at all. The applicant was charged before court on 24th August 2020 and he was released from custody on a cash bail of Kshs 100,000/= on 1st September 2020. He was barely in custody for one week. I believe the trial court considered that aspect before pronouncing that the applicant’s sentence will run from the time he was convicted. I find no reason to interfere with the discretion of the trial court on that issue of sentencing. 8. Accordingly, for the reasons set out above, I find that the application is without merit and is dismissed in its entirety. The applicant shall serve his full sentence of ten years’ imprisonment as revised by this court from the time of conviction. 9. Orders accordingly. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS, THIS 30TH DAY OF APRIL 2026. In the Presence of: The Appellant in person in Shimo La Tewa maximum prison. Orwa holding brief for Ms Vallerie for the respondent. Ummu: Court assistant. Signed by/for: HON. JUSTICE ANDAYI W. FRANCIS JUDGE KWALE HIGH COURT https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7414/eng@2026-04-30 4

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DATE: 2026-05-05 14:15:37 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7414/eng@2026-04-30 5

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