' (Being an application for revision of sentence in the Chief Magistrate’s Court at Ruiru (Honourable C. Mwaniki) in his criminal case number E547 of 2025 dated 10-04-2025)
RULING
The applicant was charged in the Chief Magistrate’s Court at Ruiru with offence of creating disturbance in a manner likely to cause breach of the peace contrary to Section 95(1)(b) of the Penal Code. It was alleged that on the 2 nd April 2025, at Mwihoko, 160 area, in Githunguri Sub-County within Kiambu County, with others not before court created disturbance to Shadrack Kevisi in a manner likely to cause a breach of the peace by threatening, shouting and uttering words ‘tutawapiga na tuharibu hizi vitu zenu zote’.
The appellant appeared before the trial court for plea on 3-04-2025 and pleaded guilty. The facts were read to him and he confirmed them as true upon which a plea of guilty was entered. The prosecution had no previous records of the applicant who upon being invited to mitigate pleaded for forgiveness and the court ordered for pre-sentencing report and set the matter for mention on 10-04-2025. The trial court received the report on 10-04-2025 and upon going through the same, the Honourable Magistrate made observation that the applicant was a bother to the society and needed rehabilitation and deterrence and proceeded to sentence him to 18 months imprisonment without an option of fine.
The applicant has now approached this court seeking revision of the sentence on the grounds that the same was excessive and illegal. He pleaded that the sentence be revised to a term of six months as provided for by the law. I have read the application, supporting affidavit and submissions of the applicant dated 14-08-2025 and those made orally by the respondent on 20-08-2025 before the Honourable Deputy Registrar. Of importance is that, the respondent has conceded to the application.
Section 95(1)(b) of the Penal Code under which the applicant was charged provides that;
Any person who-
uses obscene, abusive or insulting language, to his employer or to any person placed in authority over him by his employer, in such a manner as is likely to cause a breach of the peace; or
brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace,
is guilty of a misdemeanour and is liable to imprisonment for six months.
It is clear that the sentence imposed by the trial court was not only excessive but also illegal and a violation of the applicant’s right to fair hearing under Article 50(2)(p) which states that;
‘Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.’
Interpreted purposely, the spirit of that Article posits that an accused person once convicted can only be sentenced to a punishment not more severe than what is provided by the law as at the time the offence was committed. No court has jurisdiction to impose a penal sentence that is not provided in law or is beyond or more severe than that provided by the law. In these circumstances, I do not hesitate to hold that the sentence meted on the applicant on 10-04-2025 had no basis in law and should be quashed.
The applicant has already served five months in prison and in my view, there being no previous record of conviction and the accused having caused no harm other than shouting and public annoyance, the said period is sufficient sentence.
In view of the above, the sentence dated 10-04-2025 is hereby set aside and substituted for prison term for the period the applicant has already served. The applicant shall be released from prison forthwith unless otherwise lawfully held.
Dated signed and delivered at Nairobi this 8 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered online in presence of the appellant in person and Miss Torosi for the respondent
'
RULING
The applicant was charged in the Chief Magistrate’s Court at Ruiru with offence of creating disturbance in a manner likely to cause breach of the peace contrary to Section 95(1)(b) of the Penal Code. It was alleged that on the 2 nd April 2025, at Mwihoko, 160 area, in Githunguri Sub-County within Kiambu County, with others not before court created disturbance to Shadrack Kevisi in a manner likely to cause a breach of the peace by threatening, shouting and uttering words ‘tutawapiga na tuharibu hizi vitu zenu zote’.
The appellant appeared before the trial court for plea on 3-04-2025 and pleaded guilty. The facts were read to him and he confirmed them as true upon which a plea of guilty was entered. The prosecution had no previous records of the applicant who upon being invited to mitigate pleaded for forgiveness and the court ordered for pre-sentencing report and set the matter for mention on 10-04-2025. The trial court received the report on 10-04-2025 and upon going through the same, the Honourable Magistrate made observation that the applicant was a bother to the society and needed rehabilitation and deterrence and proceeded to sentence him to 18 months imprisonment without an option of fine.
The applicant has now approached this court seeking revision of the sentence on the grounds that the same was excessive and illegal. He pleaded that the sentence be revised to a term of six months as provided for by the law. I have read the application, supporting affidavit and submissions of the applicant dated 14-08-2025 and those made orally by the respondent on 20-08-2025 before the Honourable Deputy Registrar. Of importance is that, the respondent has conceded to the application.
Section 95(1)(b) of the Penal Code under which the applicant was charged provides that;
Any person who-
uses obscene, abusive or insulting language, to his employer or to any person placed in authority over him by his employer, in such a manner as is likely to cause a breach of the peace; or
brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace,
is guilty of a misdemeanour and is liable to imprisonment for six months.
It is clear that the sentence imposed by the trial court was not only excessive but also illegal and a violation of the applicant’s right to fair hearing under Article 50(2)(p) which states that;
‘Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.’
Interpreted purposely, the spirit of that Article posits that an accused person once convicted can only be sentenced to a punishment not more severe than what is provided by the law as at the time the offence was committed. No court has jurisdiction to impose a penal sentence that is not provided in law or is beyond or more severe than that provided by the law. In these circumstances, I do not hesitate to hold that the sentence meted on the applicant on 10-04-2025 had no basis in law and should be quashed.
The applicant has already served five months in prison and in my view, there being no previous record of conviction and the accused having caused no harm other than shouting and public annoyance, the said period is sufficient sentence.
In view of the above, the sentence dated 10-04-2025 is hereby set aside and substituted for prison term for the period the applicant has already served. The applicant shall be released from prison forthwith unless otherwise lawfully held.
Dated signed and delivered at Nairobi this 8 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered online in presence of the appellant in person and Miss Torosi for the respondent
'