'
RULING
(Revision of sentence from the original conviction and sentence of Hon Andayi W.F
(Principal Magistrate) in Criminal Case no. 318 of 2009 at Senior Resident Magistrate’s Court at Mariakani)
The undated homemade Notice of Motion prepared by the Applicant is brought under Section 364 of the Criminal Procedure Code.
The Applicant was charged, convicted and sentenced to death in Criminal Case no. 318 of 2009 for the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code. He filed Mombasa HC CRA no. 408 of 2010 wherein on 21 st December 2015 the High Court upheld the conviction and his appeal was dismissed.
The applicant is religiously serving his sentence as per the records. He now prays that his life imprisonment sentence be reduced into a lesser sentence.
I have considered the application and the affidavit in support of the same. The Respondent has not opposed it nor submitted on the application, as at the time of making this determination. There is a sentence review report dated 23 rd January 2025 filed by the Senior Probation officer whose contents I have considered.
The issue for consideration is whether the application has merit and what orders this court should make.
Section 364 of the Criminal Procedure Code grants this Court supervisory and revisional powers over subordinate courts. It allows this Court to alter or reverse orders other than acquittals, enhance sentences, stay orders from subordinate courts. However, it cannot make a prejudicial order against an accused person without giving them a chance to be heard, unless the subordinate court failed to pass a required sentence.
Section 4 of the Probation of Offenders Act states that: -
“4. Power of court to permit conditional release of offenders.
(1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may—
(a) convict the offender and make a probation order; or
(b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
(2) Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.”
In Kimutai vs Republic (2024) KEHC 6871 (KLR ) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the Court is required to take into account the following factors: -
Gravity of the offence – sentence of imprisonment should be avoided for misdemeanor.
Criminal history of the offender - taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
Character of the offender – non-custodial sentence is best suited for offenders who are already remorseful and receptive to rehabilitative measures.
Protection of the community – where the offender is likely to pose a threat to the community.
Offender’s responsibility to third parties – where there are people depending on the offender.
Further, in the case of Republic vs Felix Madalitso Keke Confirmation Appeal no. 404 of 2010 (unreported) where the court held as follows: -
“Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in the society’’’’s continuum.”
From the onset the offence herein is not a misdemeanor. The Applicant was charged, convicted and sentenced to 20 years’ imprisonment for the offence of Robbery with violence contrary to section 296 (2) of the Penal Code.
Section 296 (2) of the Penal Code provides; -
“296. Punishment of robbery
(1) …………….
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
In the case of Republic vs Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (judgement) the supreme court stated:
“46. In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this Court considered Article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on 14th December 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.
47. In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.”
The decision of the Supreme Court is binding on this court. It is now crystal clear that the instant Court does not have the discretion to go below the mandatory minimum sentence provided for under Section 296 (2) of the Penal Code. The same is constitutional. The invitation to interfere with the sentence is declined.
DELIVERED, DATED and SIGNED at MOMBASA on this 27 th day of NOVEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
MR NGIRI /SIRIMA FOR THE STATE
THE APPLICANT IN PERSON
MS BEBORA COURT ASSISTANT
'
RULING
(Revision of sentence from the original conviction and sentence of Hon Andayi W.F
(Principal Magistrate) in Criminal Case no. 318 of 2009 at Senior Resident Magistrate’s Court at Mariakani)
The undated homemade Notice of Motion prepared by the Applicant is brought under Section 364 of the Criminal Procedure Code.
The Applicant was charged, convicted and sentenced to death in Criminal Case no. 318 of 2009 for the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code. He filed Mombasa HC CRA no. 408 of 2010 wherein on 21 st December 2015 the High Court upheld the conviction and his appeal was dismissed.
The applicant is religiously serving his sentence as per the records. He now prays that his life imprisonment sentence be reduced into a lesser sentence.
I have considered the application and the affidavit in support of the same. The Respondent has not opposed it nor submitted on the application, as at the time of making this determination. There is a sentence review report dated 23 rd January 2025 filed by the Senior Probation officer whose contents I have considered.
The issue for consideration is whether the application has merit and what orders this court should make.
Section 364 of the Criminal Procedure Code grants this Court supervisory and revisional powers over subordinate courts. It allows this Court to alter or reverse orders other than acquittals, enhance sentences, stay orders from subordinate courts. However, it cannot make a prejudicial order against an accused person without giving them a chance to be heard, unless the subordinate court failed to pass a required sentence.
Section 4 of the Probation of Offenders Act states that: -
“4. Power of court to permit conditional release of offenders.
(1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may—
(a) convict the offender and make a probation order; or
(b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
(2) Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.”
In Kimutai vs Republic (2024) KEHC 6871 (KLR ) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the Court is required to take into account the following factors: -
Gravity of the offence – sentence of imprisonment should be avoided for misdemeanor.
Criminal history of the offender - taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
Character of the offender – non-custodial sentence is best suited for offenders who are already remorseful and receptive to rehabilitative measures.
Protection of the community – where the offender is likely to pose a threat to the community.
Offender’s responsibility to third parties – where there are people depending on the offender.
Further, in the case of Republic vs Felix Madalitso Keke Confirmation Appeal no. 404 of 2010 (unreported) where the court held as follows: -
“Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in the society’’’’s continuum.”
From the onset the offence herein is not a misdemeanor. The Applicant was charged, convicted and sentenced to 20 years’ imprisonment for the offence of Robbery with violence contrary to section 296 (2) of the Penal Code.
Section 296 (2) of the Penal Code provides; -
“296. Punishment of robbery
(1) …………….
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”
In the case of Republic vs Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (judgement) the supreme court stated:
“46. In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this Court considered Article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on 14th December 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.
47. In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.”
The decision of the Supreme Court is binding on this court. It is now crystal clear that the instant Court does not have the discretion to go below the mandatory minimum sentence provided for under Section 296 (2) of the Penal Code. The same is constitutional. The invitation to interfere with the sentence is declined.
DELIVERED, DATED and SIGNED at MOMBASA on this 27 th day of NOVEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
MR NGIRI /SIRIMA FOR THE STATE
THE APPLICANT IN PERSON
MS BEBORA COURT ASSISTANT
'