1. The Applicant herein, vide the notice of motion dated 10th December, 2025 seeks an order for the review of his sentence, so that he serves the remainder of his sentence on probation or community service orders.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated. The Applicant further states that he is the sole breadwinner of his family and that his continued detention has greatly prejudiced his family. In his quest, the Applicant relies on the authority of Jonathan Mutinda v Republic [2004] eKLR.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 27th March, 2026 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, unless moved successfully through an appeal, has no jurisdiction to vary the same. Counsel states that the authority of Jonathan Mutinda is not relevant to this matter as the same involved a situation where the trial court imposed an unlawful sentence.
5. I have gone through the record of the lower court and note that the Applicant was convicted on a charge of cruelty to a child contrary to Section 152(1) of the Children Act, 2022 in Nyando Senior Resident Magistrate’s Court Criminal Case No. E133 of 2025. He was subsequently sentenced to serve 4 years imprisonment. Notably, the maximum sentence provided for the offence of cruelty to a child under Section 152(1) of the Children Act, 2022 is 10 years imprisonment.
6. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the issue that arises for determination to be whether this Court has the jurisdiction to review and vary a lawful sentence imposed by the trial court, by converting the remaining term of imprisonment into a non-custodial sentence such as probation or community service, on the basis of the Applicant’s alleged rehabilitation, remorse and personal circumstances, in the absence of a successful appeal.
7. It is not disputed that the Applicant was lawfully convicted and sentenced to four (4) years imprisonment for the offence of cruelty to a child, a sentence that is well within the statutory maximum of ten (10) years provided under Section 152(1) of the Children Act, 2022. There is no indication that the trial court acted on wrong principles, considered irrelevant factors or imposed an illegal or excessive sentence.
8. The Applicant has approached this Court seeking review of the sentence on account of remorse, rehabilitation and personal hardship. However, such considerations, though relevant in appropriate cases particularly as mitigating factors before sentencing, do not of themselves confer jurisdiction upon this Court to alter a lawful sentence. The proper avenue for challenging the propriety, severity or appropriateness of a sentence lies in an appeal, where the appellate court is seized of the mandate to re-evaluate the sentence imposed.
9. While this Court retains revisionary powers to call for and examine the record of subordinate courts for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, those powers must be properly invoked.
10. In the present case, the Applicant has neither expressly invoked the Court’s revisionary jurisdiction nor demonstrated any illegality, impropriety or irregularity in the proceedings or sentence to warrant the exercise of such powers. The application, as framed, is therefore misconceived.
11. In the circumstances, and in the absence of any legal basis upon which this Court can interfere with the lawful sentence imposed, the application for review lacks merit and is hereby dismissed.
12. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated. The Applicant further states that he is the sole breadwinner of his family and that his continued detention has greatly prejudiced his family. In his quest, the Applicant relies on the authority of Jonathan Mutinda v Republic [2004] eKLR.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 27th March, 2026 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, unless moved successfully through an appeal, has no jurisdiction to vary the same. Counsel states that the authority of Jonathan Mutinda is not relevant to this matter as the same involved a situation where the trial court imposed an unlawful sentence.
5. I have gone through the record of the lower court and note that the Applicant was convicted on a charge of cruelty to a child contrary to Section 152(1) of the Children Act, 2022 in Nyando Senior Resident Magistrate’s Court Criminal Case No. E133 of 2025. He was subsequently sentenced to serve 4 years imprisonment. Notably, the maximum sentence provided for the offence of cruelty to a child under Section 152(1) of the Children Act, 2022 is 10 years imprisonment.
6. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the issue that arises for determination to be whether this Court has the jurisdiction to review and vary a lawful sentence imposed by the trial court, by converting the remaining term of imprisonment into a non-custodial sentence such as probation or community service, on the basis of the Applicant’s alleged rehabilitation, remorse and personal circumstances, in the absence of a successful appeal.
7. It is not disputed that the Applicant was lawfully convicted and sentenced to four (4) years imprisonment for the offence of cruelty to a child, a sentence that is well within the statutory maximum of ten (10) years provided under Section 152(1) of the Children Act, 2022. There is no indication that the trial court acted on wrong principles, considered irrelevant factors or imposed an illegal or excessive sentence.
8. The Applicant has approached this Court seeking review of the sentence on account of remorse, rehabilitation and personal hardship. However, such considerations, though relevant in appropriate cases particularly as mitigating factors before sentencing, do not of themselves confer jurisdiction upon this Court to alter a lawful sentence. The proper avenue for challenging the propriety, severity or appropriateness of a sentence lies in an appeal, where the appellate court is seized of the mandate to re-evaluate the sentence imposed.
9. While this Court retains revisionary powers to call for and examine the record of subordinate courts for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, those powers must be properly invoked.
10. In the present case, the Applicant has neither expressly invoked the Court’s revisionary jurisdiction nor demonstrated any illegality, impropriety or irregularity in the proceedings or sentence to warrant the exercise of such powers. The application, as framed, is therefore misconceived.
11. In the circumstances, and in the absence of any legal basis upon which this Court can interfere with the lawful sentence imposed, the application for review lacks merit and is hereby dismissed.
12. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 15th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.