1. The application herein dated 22 nd May 2025 seeks a review of sentence for the applicant. The Lower Court file has been placed before me and I have perused the same and I find the following:
a. Conviction:
Stealing stock contrary to Section 268(1) as read with section 278 of the Penal Code (Cap. 63) Laws of Kenya.
Particulars of offence : On the 18 th day of february 2025 at around 1500 Hours at Mwamtsolwa village in Mwereni location of Lunga Lunga Sub county in Kwale County stole one sheep valued at KShs 12,000/= the property of Dudu Rimba Lemomo.
b. He faced an alternative count of handling stolen goods contrary to section 322(1), (2) of the Penal Code that on the same day, same place and time, otherwise than in the course of stealing he dishonestly received or retained one sheep knowing or having reason to believe to be stolen goods.
2. The accused person pleaded guilty to the principal charge. The facts were straight forward. On 18 th February 2025, a young boy Ndurya Mbega, a relative of the complainant Dudu Rimba Lemomo was in the fields looking after sheep. The accused person went there and grabbed a male black and white sheep and left with it. The boy feared to confront him. He reported the incident to the complainant. In the meantime, the accused person slaughtered the sheep and tried to sell it to Mazera Ndurya. The complainant, Mazera Ndurya and members of the public approached the accused person and took away the meat which was in a bucket and arrested him. He was taken to Mwangulu police station. Photographs of the meat and the bucket in which it was were taken. He was subsequently charged with the offence.
3. In mitigation the applicant pleaded for forgiveness stating that he had a family of a wife and child and he was their source of livelihood. He pleaded for lenience and vowed not to repeat the offence.
4. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence. It indicated that the applicant was 25 years old. Among the reasons that made it not favourable were that the applicant had a previous record of conviction for stealing stock to which he readily admitted. Further, the community had said the applicant was a habitual thief and on this occasion they were about to lynch him for this offence. His mother was in debt for repaying persons from whom he had stolen as most complaints were settled without the applicant being charged in court.
5. The applicant was sentenced to pay a fine of KShs 50,000/= or serve eighteen months’ imprisonment.
6. In my understanding a sentence review may be undertaken under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya in conjunction with the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
7. Article 50(2)(q) of the Constitution of Kenya:
“Every accused person has the right to a fair trial, which includes the right if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
8. Article 165(6) and (7) of the constitution provides for the High Court’s supervisory jurisdiction over subordinate courts:
“(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 the 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 make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
9. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. The High Court may call for and examine the record 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.
S. 364(1)(b) In the case of a proceeding in a 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.
10. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it conforms to the constitutional and statutory provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of retribution.
11. This court is aware that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. I am guided in this respect by the Court of Appeal decision in Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) where the Court held that:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
12. The Supreme Court of Appeal of South Africa in the case of S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001) while considering the issue of minimum sentences expressed itself on the issue of the discretion in sentences thus:
“The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, 19 an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation 20 exists in the former situation.”
13. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences. I believe it is in that spirit that Article 49(2) of the constitution provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
14. This court called for a sentence review report and the same was filed by an officer of the Probation and Aftercare department. The report is not favourable for a sentence review. It indicates that the applicant states that his stay in prison has changed his thought process. He takes responsibility for his mistakes and is ready to reconcile with the victim. He promises to be law-abiding and to abide by all the requirements to be placed on a non-custodial sentence. He has been engaged on the prison farm and the instructor notes that he has acquired farming skills and he has a good potential. Further, he has obtained life skills and religious teachings. The offender has promised to employ all these skills in responsible living to earn an income.
15. The report notes that however, the applicant’s home environment is not conducive as the applicant’s parents have since separated and his wife left for her parents’ home. The report therefore states that the applicant has no good family support system and this may hamper his rehabilitation at home and this may lead to recividism.
16. I have considered the sentence review report. Although it is negative, I would have reviewed the sentence to a non-custodial term considering that all the negative factors are extraneous to the applicant. His personal circumstances while in prison where he appreciates his mistake, has acquired life survival skills, is well behaved would favour him for a sentence review, if and if only to ease prison of congestion.
17. However, I have determined the application on other grounds. I note that the default sentence of 18-months’ imprisonment was illegal. The maximum default sentence for a fine of KShs 50,000/= under the schedule to section 28(2) of the Penal Code is 6 months’ imprisonment.
18. Order: The default sentence by the trial court is set aside and substituted with a default sentence of 6 months’ imprisonment. In the circumstances, the offender has served his default term. He should be released from prison custody forthwith unless otherwise lawfully held.
19. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29 th day of May 2026. The same will be transmitted to Kwale prison for implementation.
HON. ANDAYI W. F.
JUDGE
HC Criminal Revision Sentence 8
a. Conviction:
Stealing stock contrary to Section 268(1) as read with section 278 of the Penal Code (Cap. 63) Laws of Kenya.
Particulars of offence : On the 18 th day of february 2025 at around 1500 Hours at Mwamtsolwa village in Mwereni location of Lunga Lunga Sub county in Kwale County stole one sheep valued at KShs 12,000/= the property of Dudu Rimba Lemomo.
b. He faced an alternative count of handling stolen goods contrary to section 322(1), (2) of the Penal Code that on the same day, same place and time, otherwise than in the course of stealing he dishonestly received or retained one sheep knowing or having reason to believe to be stolen goods.
2. The accused person pleaded guilty to the principal charge. The facts were straight forward. On 18 th February 2025, a young boy Ndurya Mbega, a relative of the complainant Dudu Rimba Lemomo was in the fields looking after sheep. The accused person went there and grabbed a male black and white sheep and left with it. The boy feared to confront him. He reported the incident to the complainant. In the meantime, the accused person slaughtered the sheep and tried to sell it to Mazera Ndurya. The complainant, Mazera Ndurya and members of the public approached the accused person and took away the meat which was in a bucket and arrested him. He was taken to Mwangulu police station. Photographs of the meat and the bucket in which it was were taken. He was subsequently charged with the offence.
3. In mitigation the applicant pleaded for forgiveness stating that he had a family of a wife and child and he was their source of livelihood. He pleaded for lenience and vowed not to repeat the offence.
4. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence. It indicated that the applicant was 25 years old. Among the reasons that made it not favourable were that the applicant had a previous record of conviction for stealing stock to which he readily admitted. Further, the community had said the applicant was a habitual thief and on this occasion they were about to lynch him for this offence. His mother was in debt for repaying persons from whom he had stolen as most complaints were settled without the applicant being charged in court.
5. The applicant was sentenced to pay a fine of KShs 50,000/= or serve eighteen months’ imprisonment.
6. In my understanding a sentence review may be undertaken under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya in conjunction with the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
7. Article 50(2)(q) of the Constitution of Kenya:
“Every accused person has the right to a fair trial, which includes the right if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
8. Article 165(6) and (7) of the constitution provides for the High Court’s supervisory jurisdiction over subordinate courts:
“(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 the 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 make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
9. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. The High Court may call for and examine the record 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.
S. 364(1)(b) In the case of a proceeding in a 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.
10. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it conforms to the constitutional and statutory provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of retribution.
11. This court is aware that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. I am guided in this respect by the Court of Appeal decision in Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) where the Court held that:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
12. The Supreme Court of Appeal of South Africa in the case of S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001) while considering the issue of minimum sentences expressed itself on the issue of the discretion in sentences thus:
“The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, 19 an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation 20 exists in the former situation.”
13. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences. I believe it is in that spirit that Article 49(2) of the constitution provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
14. This court called for a sentence review report and the same was filed by an officer of the Probation and Aftercare department. The report is not favourable for a sentence review. It indicates that the applicant states that his stay in prison has changed his thought process. He takes responsibility for his mistakes and is ready to reconcile with the victim. He promises to be law-abiding and to abide by all the requirements to be placed on a non-custodial sentence. He has been engaged on the prison farm and the instructor notes that he has acquired farming skills and he has a good potential. Further, he has obtained life skills and religious teachings. The offender has promised to employ all these skills in responsible living to earn an income.
15. The report notes that however, the applicant’s home environment is not conducive as the applicant’s parents have since separated and his wife left for her parents’ home. The report therefore states that the applicant has no good family support system and this may hamper his rehabilitation at home and this may lead to recividism.
16. I have considered the sentence review report. Although it is negative, I would have reviewed the sentence to a non-custodial term considering that all the negative factors are extraneous to the applicant. His personal circumstances while in prison where he appreciates his mistake, has acquired life survival skills, is well behaved would favour him for a sentence review, if and if only to ease prison of congestion.
17. However, I have determined the application on other grounds. I note that the default sentence of 18-months’ imprisonment was illegal. The maximum default sentence for a fine of KShs 50,000/= under the schedule to section 28(2) of the Penal Code is 6 months’ imprisonment.
18. Order: The default sentence by the trial court is set aside and substituted with a default sentence of 6 months’ imprisonment. In the circumstances, the offender has served his default term. He should be released from prison custody forthwith unless otherwise lawfully held.
19. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29 th day of May 2026. The same will be transmitted to Kwale prison for implementation.
HON. ANDAYI W. F.
JUDGE
HC Criminal Revision Sentence 8