REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIBERA MISC. CRIMIANAL APPLICATION NO. E093 OF 2026 ERIC MBURU GATHONI...……..……..…………………………… APPLICANT VERSUS REPUBLIC………………………………………………………….RESPONDE NT RULING 1. The Applicant was charged and convicted in Criminal Case No. E045 of 2022 on two counts. Count I was rape contrary to section 3(1)(a) and (b) as read with section 3(3) of the Sexual Offences Act, while Count II was assault causing actual bodily harm contrary to section 251 of the Penal Code. He was sentenced to fifteen (15) years' imprisonment on Count I and three (3) years' imprisonment on Count II, the sentences to run concurrently. 2. The Applicant has filed the present application seeking revision of sentence. In his supporting affidavit, he states that he is the sole breadwinner of his young family, that the custodial sentence will deprive him of his most productive years, hinder his reintegration into society, and therefore urges the court to reduce the sentence. 3. I have considered the application, the supporting affidavit, the trial court record and the applicable law. The issue for determination is whether there is any basis for interfering with the sentence imposed. 4. In determining sentence, the court must consider both the mitigating and aggravating circumstances of the case. This principle was reaffirmed in Marindany v Republic [2023] KECA Page 1 of 2
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450 (KLR). The Applicant's mitigation is that he is a remorseful first offender and the sole breadwinner of his family. 5. However, the record shows that the Applicant subjected the complainant to brutal violence, causing her serious injuries in the course of the rape. These aggravating circumstances outweigh the mitigating factors and justify the sentence imposed by the trial court. 6. Having considered all the circumstances, I find that the sentence is lawful, proportionate and appropriate. The Applicant has not demonstrated any basis for this court to interfere with the trial court's exercise of discretion. 7. Accordingly, the application lacks merit and is dismissed. Orders accordingly. Ruling dated and delivered virtually this 30th day of June 2026 ______________ D. KAVEDZA JUDGE In the presence of: Applicant present Ms. Otiya for the Respondent Karimi Court Assistant Page 2 of 2
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