(ARISING FROM THE CM’S COURT AT MOMBASA CRIMINAL CASE NUMBER E075 OF 2021)
1. The Applicant moved this Court by way of an application seeking revision of sentence pursuant to Article 165(6) and (7) of the Constitution, Article 50(2)(p) thereof, and section 362 as read with section 364 of the Criminal Procedure Code. He prayed that the sentence imposed by the trial court be reviewed on the grounds that it was illegal, excessive, and oppressive.
2. The Applicant contended that the sentence of three (3) years’ imprisonment coupled with an order for compensation to the complainant, and in default thereof an additional one (1) year imprisonment, amounted to double punishment and was therefore unlawful. He urged the Court to exercise its supervisory and revisionary jurisdiction to interrogate the legality, propriety, and correctness of the sentence imposed.
3. The Applicant further invoked Article 50(2)(p) of the Constitution, asserting his entitlement to the benefit of the least severe punishment prescribed by law. In mitigation, he appealed to the Court for mercy, citing the hardship visited upon his family, particularly his children whose education had been disrupted and his spouse who bears the burden of single-handedly sustaining the family during his incarceration.
4. A Sentence Review Report on Prison Assessment, Rehabilitation and Reintegration was placed before the Court. The report indicates that the Applicant has served approximately twenty-one (21) months of the custodial sentence. He is described as deeply remorseful, having fully acknowledged responsibility for his actions and the harm occasioned to the complainant.
5. The report further confirms that the Applicant has maintained a clean disciplinary record while in custody, has exhibited exemplary conduct, and has been entrusted with institutional responsibilities as an internal cleaner. Although no long-term rehabilitative programme had been earmarked for him, the prison authorities note that he has undergone reformation and rehabilitation processes with positive outcomes.
6. The views of the Applicant’s spouse and close family members were also captured in the report. They expressed willingness to support his reintegration and resettlement and confirmed that the home environment is conducive. The family further undertook to economically empower the Applicant should the Court consider a non-custodial sentence.
7. The Officer-in-Charge of the prison facility confirmed that the Applicant has been in custody since conviction, has demonstrated consistent good behaviour, and is assessed as fully reformed and ready for reintegration into society. The Officer strongly recommended a review of the sentence.
8. This Court also took note of the favourable remarks made by the prison authorities during its visit, which corroborated the contents of the probation and prison reports.
9. The State did not oppose the application for sentence review.
10. The Applicant additionally undertook to compensate the complainant, an undertaking that aligns with the principles of restorative justice as envisaged under Article 159(2)(c) of the Constitution and the Judiciary Sentencing Policy Guidelines, 2016.
11. This Court is guided by the principles governing sentence revision as articulated in Bernard Kimani Gacheru v Republic [2002] eKLR, where the Court of Appeal held that a sentence may be interfered with if it is shown to be illegal, excessive, or founded on wrong principles. Similarly, in Wanjema v Republic [1971] EA 493, the Court stated that appellate or supervisory courts may intervene where a sentence is manifestly harsh or excessive in the circumstances of the case.
12. The Judiciary Sentencing Policy Guidelines, 2016, particularly paragraphs 4.1, 4.2, and 7.18, emphasize that sentencing must promote proportionality, rehabilitation, restorative justice, and reintegration of offenders into society, while taking into account time already served, the offender’s remorse, and the impact of the sentence on dependants.
13. Having considered the totality of the material before Court, including the Applicant’s conduct in custody, the favourable probation and prison reports, the absence of opposition by the State, the period already served, and the Applicant’s willingness to compensate the complainant, I am satisfied that this is a proper case for the Court to exercise its revisionary jurisdiction.
14. I therefore find that the application is meritorious.
ORDERS
15. The custodial sentence imposed upon the Applicant is hereby reviewed and reduced to the period already served.
16. The Applicant shall thereafter serve two (2) years’ probation under the supervision of the Probation Office.
17. The Applicant shall compensate the complainant, Regina W. Ayub, the sum of Kenya Shillings One Million and Fifty Thousand (Kshs. 1,050,000/=) through the Probation Office.
18. The Applicant is granted six (6) months from the date hereof to put his affairs in order and thereafter present to the Probation Office a reasonable and structured repayment plan for approval and supervision.
DATED, SIGNED AND DELIVERED at Mombasa in open court and/or virtually via MS Teams this 19th day of December, 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
THE APPLICANT
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
1. The Applicant moved this Court by way of an application seeking revision of sentence pursuant to Article 165(6) and (7) of the Constitution, Article 50(2)(p) thereof, and section 362 as read with section 364 of the Criminal Procedure Code. He prayed that the sentence imposed by the trial court be reviewed on the grounds that it was illegal, excessive, and oppressive.
2. The Applicant contended that the sentence of three (3) years’ imprisonment coupled with an order for compensation to the complainant, and in default thereof an additional one (1) year imprisonment, amounted to double punishment and was therefore unlawful. He urged the Court to exercise its supervisory and revisionary jurisdiction to interrogate the legality, propriety, and correctness of the sentence imposed.
3. The Applicant further invoked Article 50(2)(p) of the Constitution, asserting his entitlement to the benefit of the least severe punishment prescribed by law. In mitigation, he appealed to the Court for mercy, citing the hardship visited upon his family, particularly his children whose education had been disrupted and his spouse who bears the burden of single-handedly sustaining the family during his incarceration.
4. A Sentence Review Report on Prison Assessment, Rehabilitation and Reintegration was placed before the Court. The report indicates that the Applicant has served approximately twenty-one (21) months of the custodial sentence. He is described as deeply remorseful, having fully acknowledged responsibility for his actions and the harm occasioned to the complainant.
5. The report further confirms that the Applicant has maintained a clean disciplinary record while in custody, has exhibited exemplary conduct, and has been entrusted with institutional responsibilities as an internal cleaner. Although no long-term rehabilitative programme had been earmarked for him, the prison authorities note that he has undergone reformation and rehabilitation processes with positive outcomes.
6. The views of the Applicant’s spouse and close family members were also captured in the report. They expressed willingness to support his reintegration and resettlement and confirmed that the home environment is conducive. The family further undertook to economically empower the Applicant should the Court consider a non-custodial sentence.
7. The Officer-in-Charge of the prison facility confirmed that the Applicant has been in custody since conviction, has demonstrated consistent good behaviour, and is assessed as fully reformed and ready for reintegration into society. The Officer strongly recommended a review of the sentence.
8. This Court also took note of the favourable remarks made by the prison authorities during its visit, which corroborated the contents of the probation and prison reports.
9. The State did not oppose the application for sentence review.
10. The Applicant additionally undertook to compensate the complainant, an undertaking that aligns with the principles of restorative justice as envisaged under Article 159(2)(c) of the Constitution and the Judiciary Sentencing Policy Guidelines, 2016.
11. This Court is guided by the principles governing sentence revision as articulated in Bernard Kimani Gacheru v Republic [2002] eKLR, where the Court of Appeal held that a sentence may be interfered with if it is shown to be illegal, excessive, or founded on wrong principles. Similarly, in Wanjema v Republic [1971] EA 493, the Court stated that appellate or supervisory courts may intervene where a sentence is manifestly harsh or excessive in the circumstances of the case.
12. The Judiciary Sentencing Policy Guidelines, 2016, particularly paragraphs 4.1, 4.2, and 7.18, emphasize that sentencing must promote proportionality, rehabilitation, restorative justice, and reintegration of offenders into society, while taking into account time already served, the offender’s remorse, and the impact of the sentence on dependants.
13. Having considered the totality of the material before Court, including the Applicant’s conduct in custody, the favourable probation and prison reports, the absence of opposition by the State, the period already served, and the Applicant’s willingness to compensate the complainant, I am satisfied that this is a proper case for the Court to exercise its revisionary jurisdiction.
14. I therefore find that the application is meritorious.
ORDERS
15. The custodial sentence imposed upon the Applicant is hereby reviewed and reduced to the period already served.
16. The Applicant shall thereafter serve two (2) years’ probation under the supervision of the Probation Office.
17. The Applicant shall compensate the complainant, Regina W. Ayub, the sum of Kenya Shillings One Million and Fifty Thousand (Kshs. 1,050,000/=) through the Probation Office.
18. The Applicant is granted six (6) months from the date hereof to put his affairs in order and thereafter present to the Probation Office a reasonable and structured repayment plan for approval and supervision.
DATED, SIGNED AND DELIVERED at Mombasa in open court and/or virtually via MS Teams this 19th day of December, 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
THE APPLICANT
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT