Wanyama v Republic (Miscellaneous Criminal Application E115 of 2025) [2026] KEHC 9572 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9572 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA MISCELLANEOUS CRIMINAL APPLICATION E115 OF 2025 NM ORINA, J JULY 2, 2026 BETWEEN TOM MTONYI WANYAMA .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. He was convicted and sentenced to life imprisonment. He has now moved this court through an undated application seeking revision of the sentence imposed for purposes of commutation of the remaining part of his sentence to probation placement. He avers, in support of the application, that he has been in jail for a considerable period of time and he has reformed. He also urges the court to consider that his family has suffered in his absence and needs him. 2. In exercise of powers under Section 362 and 364 of the Criminal procedure Code, this Court is called upon to examine the record of the trial court and to be satisfied of the correctness, legality or propriety of any finding sentence or order. This is the power of revision. Pursuant to Section 4 of the probation of Offenders Act, this Court may also place a convicted person on probation, “having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct…” 3. Although no sentence review report has been filed in this case, this court has called and examined the trial record and the judgment of the subordinate court. The Applicant was tried and convicted of defilement of a child aged 10 years old at the time. Defilement is a serious offence and this has been recognised in the nature of sentences mandated by the Sexual Offences Act. The offence committed by the Applicant has long-term effects on victims. The Applicant has not articulated special circumstances which would persuade this court to exercise the discretion to substitute the remainder of the custodial sentence for a probation order. It is not enough to merely state that one has a family that continues https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9572/eng@2026-07-02 1
page 1 of 2
to suffer due to the incarceration. He preyed on a 10-year-old child who carries the trauma for the rest of her life. Taken as a whole, and especially considering the magnitude of the offence committed and the tender age of the victim, the applicant objectives of punishment have not been met, merely 7 years since he was arrested. Releasing the applicant back to society early would be a dismissal of the trauma he occasioned the victim and will send a wrong message that the judicial system has failed the victim. 4. In conclusion, a probation order would, in the circumstances of the seriousness of the offence and the possibility of re-traumatisation of the victim, not be appropriate for consideration until the applicant has served a substantial time in jail. At the moment the same is not warranted and the application is hereby dismissed. RULING DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY 2026 ________________ NABIL M. ORINA JUDGE In the Presence of: The Applicant Hamza – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9572/eng@2026-07-02 2
page 2 of 2