Douglas Nandwa Namusenge v Republic

5. Reliance was placed upon the Supreme Court case of Republic v Kitsau Manyeso Petition 013 of 2024 (KeHC) 16 eKLR where the court held that mandatory sentences are legal. It was submitted that in this case, the High Court cannot review a minimum sentence. The court was therefore urged to dismiss the application and that the Applicant should serve the remaining part of the sentence. 6. I have considered the application, the brief oral submissions made by the learned prosecution counsel in opposition of the application, together with the records of the trial court, and I find that this application invokes the revisional jurisdiction of this court as provided for under Section 362 of the Criminal Procedure Code. 7. Section 362 of the Criminal Procedure Code stipulates thus: “ The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 8. It is a well settled principle of law, that sentencing is at the discretion of the trial court, and an appellate court can only interfere with this discretion when it is satisfied that the trial court while sentencing the accused, acted upon wrong principles, overlooked some material factors or that the sentence was manifestly excessive in view of the circumstances of the case. 9. This principle was reiterated by the Court of Appeal in the case of Macharia v Republic (2003) KLR 115-118 as follows: “ The principle upon which this court will act in exercising its jurisdiction to review or alter a sentence imposed by the trial court have been firmly settled as far back as 1954, in the case of Ogalo s/o Owuor (1954) EACA at page 270, wherein the predecessor of this court stated: “the court does not alter a sentence on mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James vs.R, (1950) 18 EACA 147 “it is evident that the judge has acted upon some material factors” to this we would also add third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewsky (1912) CCA 28 TLR 364.” 10. Having stated ass above, the offence of indecent act contrary to section 11(1) of the Sexual offences Act No. 3 of 2006 attracts a mandatory minimum sentence of not less than 10 years imprisonment. which can be enhanced where there are aggravating factors. 11. In this case, the learned trial magistrate considered all the circumstances of the case, including the fact that the applicant was repeat offender and proceeded to sentence him to a term of ten (10) years imprisonment. I therefore do not find any need to interfere with the sentence imposed by the court, as the same is just, lenient and fair. 12. Furthermore, the applicant has not demonstrated that the learned trial magistrate while sentencing him, applied the wrong principles, considered some irrelevant factors or that the sentence imposed was manifestly excessive given the circumstances of the case. 13. I have also taken into account the report dated 25th March 2019 by the Probation officer to the trial court prior to the sentencing which was not favorable to the Applicant as it found him unsuitable for non-custodial sentence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8132/eng@2026-06-11 2

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14. Based on the above, I find that the application lacks merit and is hereby dismissed. Sentence to run from 30th August 2019. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Applicant present virtually Ndege for Respondent Nyabuto – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8132/eng@2026-06-11 3

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