[1] By her Petition for Revision dated 30 th June 2026, the applicant, Gladys Keter , moved the Court pursuant to the provisions of Sections 362, 364 and 365 of the Criminal Procedure Code for orders that:
[a] The Petition be certified as urgent and be heard on a priority basis.
[b] The Court be pleased to call for and examine the original record of the proceedings in Kabiyet Principal Magistrate’s Court Criminal Case No. E117 of 2026 for the purpose of satisfying itself as to the correctness, legality and propriety of the sentence passed therein.
[c] That the Court be pleased to set aside the sentence of two (2) years’ imprisonment imposed upon the Petitioner on the 3 rd June 2026 and to substitute therefor a non-custodial sentence and/or a fine, and/or such other lawful sentence as this Court may deem just.
[d] Pending the hearing and determination of this Petition, the Court be pleased to order the release of the applicant on bond on such terms as the Court shall deem fit.
[e] The costs of this Petition be provided for.
[f] The Court be pleased to grant such further or other relief as it may deem just and expedient.
[2] The Petition was premised on the grounds that the applicant was arraigned before the Kabiyet Principal Magistrate’s Court in Criminal Case No. E117 of 2026 for the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code; and that on the 25 th May 2026, upon the charge and particulars being read to her, the she pleaded guilty and was convicted on her own plea. She was thereafter on the 3 rd June 2026 sentenced to serve two (2) years’ imprisonment.
[3] The applicant averred that the offence of stealing under Section 275 of the Penal Code does not prescribe any mandatory minimum sentence, and therefore the trial court retained a wide and unfettered discretion to impose a fine and/or a non-custodial sentence in lieu of imprisonment. She faulted the learned magistrate for failing to advert to or consider the alternative sentencing options available; and therefore made her decision in disregard of Section 329 of the Criminal Procedure Code and the appellant’s right to a fair trial under Article 50 of the Constitution. She was further aggrieved that the trial court failed to call for or consider a pre-sentence report as required by the Probation of Offenders Act, the Community Service Order Act and the Judiciary Sentencing Policy Guidelines, the more so given that she is a first offender.
[4] The applicant further averred that the lower court gave no reasons whatsoever for the sentence imposed, contrary to Section 333 of the Criminal Procedure Code and established sentencing principles, rendering the sentence improper and liable to revision. She added that the trial court wholly failed to take into account that the complainant had, on the 26 th May 2026 and again on the 3 rd June 2026, indicated his desire to withdraw the charge against her; a factor which in her view was of relevance to the appropriate sentence.
[5] The applicant averred that, other than being a first offender, she is a single mother and the sole caregiver, provider and breadwinner of three (3) minor children, namely Collins Kipruto (aged 17, a Grade 10 learner at Kamasai Senior School), Caroline Jepchirchir (aged 13, a Grade 8 learner at Kimolwet Primary School), and Ivan Kigen (aged 2), whose welfare, education and subsistence have been gravely imperiled by her incarceration. She contended that this is itself a contravention of Article 53(2) of the Constitution and the Children Act, 2022 which obligate courts to take into consideration the best interest of children.
[6] The applicant further stated that she is a person of ill health, suffering from hypertension for which she is under continuing medication; and that her condition cannot be adequately managed in custody and is aggravated by her incarceration. She therefore averred that the custodial sentence visits disproportionate and irreparable hardship not only upon her but also upon three innocent minor children wholly dependent upon her. She urged the Court to take into account the nature of the offence, her unequivocal and remorseful plea of guilty, her status as a first offender and the compelling personal circumstances aforesaid, and find that the sentence of two (2) years’ imprisonment is manifestly harsh, excessive and disproportionate, and ought in the interests of justice to be revised.
[7] In addition to the Petition, the applicant filed a Notice of Motion dated 30 th June 2026 raising the same issues and seeking the same orders. The application was filed under a Certificate of Urgency. Accordingly, the same was duly considered and certified urgent. It was fixed for hearing on 8 th July 2026 and the lower court record called for in accordance with Article 165 of the Constitution and Section 362 of the Criminal Procedure Code.
[8] Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[9] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records 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 ."
[10] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[11] A perusal of the record of the lower court confirms that the applicant was convicted on her own plea of guilty. The procedure for plea taking is set out in Section 207 of the Criminal Procedure Code, and the steps amplified in Adan v Republic [1973] E.A. 445 as follows:
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded.”
[12] In this case, the applicant admitted the charge upon arraignment on 13 th May 2026, whereupon a plea of guilty was entered. The matter was stood over to 14 th May 2026 for the facts to be stated by the Prosecution. When the facts were narrated, the applicant is recorded to have admitted the same but in mitigation, she stated that the complainant had given her the money she was accused of having stolen. The plea court then recorded a change of plea and fixed the matter for pre-trial directions on 25 th May 2025. In the meantime, the applicant was granted bond of Kshs. 100,000/= with a surety of similar amount.
[13] On the 25 th May 2026, the applicant opted to change plea to guilty, the facts were again restated and she admitted them. She was accordingly convicted on her own plea of guilty. Sentencing was then deferred to 26 th May 2026. Sentencing hearing was ultimately conducted on 3 rd June 2026 when the applicant was sentenced to 2 years’ imprisonment.
[14] It is therefore manifest from the record that after the change of plea and restatement of the facts on 15 th May 2026, the applicant was not given a chance to address the court in mitigation. That was a serious flaw. Had the lower court given the applicant the opportunity, she may have disclosed that she is sickly, and that she is a single parent of 3 children who would be adversely affected by her incarceration.
[15] Secondly, the record of the lower court shows that the applicant was a first offender; and that at some point the complainant had indicated his intention to withdraw the charge. In the premises, the learned magistrate was failed to take into account Paragraph 2.3.13 of the Judiciary Sentencing Policy Guidelines, which states:
Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
[16] Moreover, at Paragraph 2.3.15 of the Judiciary Sentencing Policy Guidelines, the factors to be taken into account when determining whether or not to impose a custodial sentence are listed. They include the gravity of the offence, the criminal history of the offender, whether or not the offender is remorseful and whether the offender is a threat to the community. In particular, sentencing courts are urged to take into account the offender’s responsibilities to third parties who may be affected by their imprisonment. Hence, paragraph 2.3.15 states at sub paragraph (vi) that:
Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in the light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence or a suspended sentence…The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report.
[17] In this instance, the applicant was not given an opportunity to address the court in mitigation after she opted to change her plea. No pre-sentence report was called for and no inquiry whatsoever was made by the court as to the applicant’s personal circumstances.
[18] In the premises, it is manifest that the sentence of 2 years’ imprisonment imposed on the applicant, while legal, falls short of the test of propriety. Accordingly, the Petition and Notice of Motion dated 30 th June 2026 are hereby allowed and orders given as follows:
[a] The sentence of two years’ imprisonment imposed on the applicant on 3 rd June 2026 by the lower court in Kabiyet Principal Magistrate’s Criminal Case No. E117 of 2026 is hereby reduced to the period served.
[b] The applicant be released from prison custody forthwith unless otherwise lawfully held.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 28 TH DAY OF JULY 2026
[a] The Petition be certified as urgent and be heard on a priority basis.
[b] The Court be pleased to call for and examine the original record of the proceedings in Kabiyet Principal Magistrate’s Court Criminal Case No. E117 of 2026 for the purpose of satisfying itself as to the correctness, legality and propriety of the sentence passed therein.
[c] That the Court be pleased to set aside the sentence of two (2) years’ imprisonment imposed upon the Petitioner on the 3 rd June 2026 and to substitute therefor a non-custodial sentence and/or a fine, and/or such other lawful sentence as this Court may deem just.
[d] Pending the hearing and determination of this Petition, the Court be pleased to order the release of the applicant on bond on such terms as the Court shall deem fit.
[e] The costs of this Petition be provided for.
[f] The Court be pleased to grant such further or other relief as it may deem just and expedient.
[2] The Petition was premised on the grounds that the applicant was arraigned before the Kabiyet Principal Magistrate’s Court in Criminal Case No. E117 of 2026 for the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code; and that on the 25 th May 2026, upon the charge and particulars being read to her, the she pleaded guilty and was convicted on her own plea. She was thereafter on the 3 rd June 2026 sentenced to serve two (2) years’ imprisonment.
[3] The applicant averred that the offence of stealing under Section 275 of the Penal Code does not prescribe any mandatory minimum sentence, and therefore the trial court retained a wide and unfettered discretion to impose a fine and/or a non-custodial sentence in lieu of imprisonment. She faulted the learned magistrate for failing to advert to or consider the alternative sentencing options available; and therefore made her decision in disregard of Section 329 of the Criminal Procedure Code and the appellant’s right to a fair trial under Article 50 of the Constitution. She was further aggrieved that the trial court failed to call for or consider a pre-sentence report as required by the Probation of Offenders Act, the Community Service Order Act and the Judiciary Sentencing Policy Guidelines, the more so given that she is a first offender.
[4] The applicant further averred that the lower court gave no reasons whatsoever for the sentence imposed, contrary to Section 333 of the Criminal Procedure Code and established sentencing principles, rendering the sentence improper and liable to revision. She added that the trial court wholly failed to take into account that the complainant had, on the 26 th May 2026 and again on the 3 rd June 2026, indicated his desire to withdraw the charge against her; a factor which in her view was of relevance to the appropriate sentence.
[5] The applicant averred that, other than being a first offender, she is a single mother and the sole caregiver, provider and breadwinner of three (3) minor children, namely Collins Kipruto (aged 17, a Grade 10 learner at Kamasai Senior School), Caroline Jepchirchir (aged 13, a Grade 8 learner at Kimolwet Primary School), and Ivan Kigen (aged 2), whose welfare, education and subsistence have been gravely imperiled by her incarceration. She contended that this is itself a contravention of Article 53(2) of the Constitution and the Children Act, 2022 which obligate courts to take into consideration the best interest of children.
[6] The applicant further stated that she is a person of ill health, suffering from hypertension for which she is under continuing medication; and that her condition cannot be adequately managed in custody and is aggravated by her incarceration. She therefore averred that the custodial sentence visits disproportionate and irreparable hardship not only upon her but also upon three innocent minor children wholly dependent upon her. She urged the Court to take into account the nature of the offence, her unequivocal and remorseful plea of guilty, her status as a first offender and the compelling personal circumstances aforesaid, and find that the sentence of two (2) years’ imprisonment is manifestly harsh, excessive and disproportionate, and ought in the interests of justice to be revised.
[7] In addition to the Petition, the applicant filed a Notice of Motion dated 30 th June 2026 raising the same issues and seeking the same orders. The application was filed under a Certificate of Urgency. Accordingly, the same was duly considered and certified urgent. It was fixed for hearing on 8 th July 2026 and the lower court record called for in accordance with Article 165 of the Constitution and Section 362 of the Criminal Procedure Code.
[8] Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[9] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records 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 ."
[10] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[11] A perusal of the record of the lower court confirms that the applicant was convicted on her own plea of guilty. The procedure for plea taking is set out in Section 207 of the Criminal Procedure Code, and the steps amplified in Adan v Republic [1973] E.A. 445 as follows:
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded.”
[12] In this case, the applicant admitted the charge upon arraignment on 13 th May 2026, whereupon a plea of guilty was entered. The matter was stood over to 14 th May 2026 for the facts to be stated by the Prosecution. When the facts were narrated, the applicant is recorded to have admitted the same but in mitigation, she stated that the complainant had given her the money she was accused of having stolen. The plea court then recorded a change of plea and fixed the matter for pre-trial directions on 25 th May 2025. In the meantime, the applicant was granted bond of Kshs. 100,000/= with a surety of similar amount.
[13] On the 25 th May 2026, the applicant opted to change plea to guilty, the facts were again restated and she admitted them. She was accordingly convicted on her own plea of guilty. Sentencing was then deferred to 26 th May 2026. Sentencing hearing was ultimately conducted on 3 rd June 2026 when the applicant was sentenced to 2 years’ imprisonment.
[14] It is therefore manifest from the record that after the change of plea and restatement of the facts on 15 th May 2026, the applicant was not given a chance to address the court in mitigation. That was a serious flaw. Had the lower court given the applicant the opportunity, she may have disclosed that she is sickly, and that she is a single parent of 3 children who would be adversely affected by her incarceration.
[15] Secondly, the record of the lower court shows that the applicant was a first offender; and that at some point the complainant had indicated his intention to withdraw the charge. In the premises, the learned magistrate was failed to take into account Paragraph 2.3.13 of the Judiciary Sentencing Policy Guidelines, which states:
Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
[16] Moreover, at Paragraph 2.3.15 of the Judiciary Sentencing Policy Guidelines, the factors to be taken into account when determining whether or not to impose a custodial sentence are listed. They include the gravity of the offence, the criminal history of the offender, whether or not the offender is remorseful and whether the offender is a threat to the community. In particular, sentencing courts are urged to take into account the offender’s responsibilities to third parties who may be affected by their imprisonment. Hence, paragraph 2.3.15 states at sub paragraph (vi) that:
Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in the light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence or a suspended sentence…The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report.
[17] In this instance, the applicant was not given an opportunity to address the court in mitigation after she opted to change her plea. No pre-sentence report was called for and no inquiry whatsoever was made by the court as to the applicant’s personal circumstances.
[18] In the premises, it is manifest that the sentence of 2 years’ imprisonment imposed on the applicant, while legal, falls short of the test of propriety. Accordingly, the Petition and Notice of Motion dated 30 th June 2026 are hereby allowed and orders given as follows:
[a] The sentence of two years’ imprisonment imposed on the applicant on 3 rd June 2026 by the lower court in Kabiyet Principal Magistrate’s Criminal Case No. E117 of 2026 is hereby reduced to the period served.
[b] The applicant be released from prison custody forthwith unless otherwise lawfully held.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 28 TH DAY OF JULY 2026