1. The Applicant seeks revision of the sentence imposed by the subordinate court pursuant to Sections 362 and 364 of the Criminal Procedure Code. He was charged with the offence of obtaining by false pretences contrary to Section 315 of the Penal Code, together with related offences of making and uttering false documents. He initially pleaded not guilty, and the prosecution commenced its case. Midway through the trial, however, the Applicant entered into a plea bargaining agreement with the prosecution. Upon conviction in accordance with that agreement, he was sentenced to three and a half (3½) years' imprisonment. He now invites this Court to substitute the remainder of that custodial sentence with a non-custodial sentence.
2. The revisionary jurisdiction of this Court is supervisory in nature. It is not an appellate jurisdiction through which the Court merely substitutes its own opinion for that of the trial court. The Court may only interfere where the proceedings are illegal, incorrect, improper, or where there exists a material irregularity that has occasioned a miscarriage of justice. The Applicant therefore bears the burden of demonstrating sufficient grounds to warrant the intervention of this Court.
3. From the application and the material placed before the Court, the following issues arise for determination:
i. Whether the Applicant has established sufficient grounds to warrant revision of the custodial sentence imposed by the trial court.
ii. Whether the Applicant's personal circumstances, including his age, health condition, rehabilitation, and the period already served, justify substitution of the remaining custodial sentence with a non-custodial sentence.
4. The Applicant submits that he is a first offender who has demonstrated genuine remorse and has embraced rehabilitation during his incarceration. He contends that he has no previous criminal record and has become a responsible inmate. He relies on Clause 7.19(2) of the Sentencing Policy Guidelines, which encourages courts, where appropriate, to consider non-custodial sentences for first offenders after weighing the seriousness of the offence and all relevant circumstances.
5. He further relies on Clause 7.19(5) of the Sentencing Policy Guidelines, which provides that where an offender is unlikely to pose a threat to the community, a non-custodial sentence may be appropriate, the assessment being informed by a probation report.
6. Pursuant to those submissions, this Court called for a Sentence Review Report. The report portrays the Applicant as cooperative and receptive to rehabilitation. He expresses a desire to continue supporting his family and states that a non-custodial sentence would enable him to do so. He also acknowledges that his incarceration has had a positive impact on his character and outlook. The report further indicates that despite his advancing age and underlying medical conditions, he remains physically capable and is willing to utilise his experience in construction to undertake community service through renovation of public facilities and repair of school furniture.
7. The application is, however, vigorously opposed by the complainant. He deposes that he suffered substantial financial loss at the hands of the Applicant and that the sentence imposed by the trial court was already lenient in the circumstances. In his view, releasing the Applicant prematurely would diminish public confidence in the criminal justice system and embolden perpetrators of economic crimes. He further states that he successfully obtained judgment against the Applicant in civil proceedings, yet the decretal amount remains unpaid.
8. The local administration, through the area Chief, equally opposes the application. The Chief describes the Applicant as a person with a history of deceiving members of the public and evading responsibility by going into hiding. In the Chief's assessment, the Applicant is unlikely to comply with the conditions of a non-custodial sentence and should therefore serve the custodial sentence imposed.
9. I have carefully considered the application, the grounds advanced by the Applicant, the Sentence Review Report, the Victim Impact Statement, and the views expressed by the local administration.
10. The Applicant's status as a first offender, his remorse, positive conduct while in custody, and his willingness to contribute to society are all relevant mitigating considerations. Equally deserving of consideration are his age and underlying health challenges. These factors demonstrate commendable progress towards rehabilitation.
11. Nevertheless, sentencing is guided not only by the interests of the offender but also by the interests of victims, the community, and the administration of justice. The objectives of sentencing include punishment, deterrence, rehabilitation, denunciation of criminal conduct, community protection, accountability, and restorative justice. No single objective should eclipse the others.
12. The record demonstrates that the Applicant benefited from a plea bargain after the trial had already commenced. The sentence ultimately imposed reflected that concession. There is nothing before this Court to suggest that the sentence was unlawful, manifestly excessive, or founded upon any error of principle. Neither has the Applicant demonstrated any impropriety or irregularity in the proceedings capable of invoking this Court's revisionary jurisdiction.
13. Of particular significance is the nature of the offence. The complainant lost Kshs. 4,200,562/= , a substantial sum, through what the trial court found to be a fraudulent criminal enterprise. The loss has not been restituted despite the complainant obtaining judgment in related civil proceedings. Economic crimes of this magnitude inflict not only financial loss upon individual victims but also erode public confidence in commercial transactions and the rule of law.
14. I also take judicial notice that one of the Applicant's co-accused persons remains at large. While that fact is not determinative of this application, it underscores that the criminal enterprise has not been fully brought to account.
15. The reports received by this Court reveal considerable opposition from both the complainant and the local administration. Their concerns are not founded merely upon emotion but upon the Applicant's perceived history of fraudulent conduct and the apprehension that he may fail to comply with a community-based sentence. Those concerns cannot be ignored, particularly where the Sentencing Policy Guidelines require the Court to assess the safety of the community and the suitability of the offender before imposing a non-custodial sentence.
16. The Court is alive to the constitutional imperative that sentencing should promote rehabilitation where appropriate. However, rehabilitation must be balanced against proportionality, deterrence, accountability, and the legitimate expectations of victims that justice will not only be done but will manifestly be seen to be done.
17. In the present case, substituting the custodial sentence with a non-custodial sentence at this stage would, in my respectful view, undermine the objectives of sentencing. It would diminish the seriousness of the offences committed, particularly where the victim has not been compensated and the Applicant has served only a relatively short portion of the sentence imposed following a negotiated plea agreement. Such an outcome would risk conveying the undesirable impression that sophisticated economic crimes attract limited penal consequences.
18. Having carefully examined the record of the subordinate court, I find no illegality, incorrectness, impropriety, or procedural irregularity that would justify the exercise of this Court's revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code. The sentence imposed remains lawful, proportionate, and appropriate in the circumstances.
19. Consequently, I find no merit in the application for revision. The same is hereby dismissed. The applicant to comlete his lawful sentence
20. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
APPLICANT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COUT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
2. The revisionary jurisdiction of this Court is supervisory in nature. It is not an appellate jurisdiction through which the Court merely substitutes its own opinion for that of the trial court. The Court may only interfere where the proceedings are illegal, incorrect, improper, or where there exists a material irregularity that has occasioned a miscarriage of justice. The Applicant therefore bears the burden of demonstrating sufficient grounds to warrant the intervention of this Court.
3. From the application and the material placed before the Court, the following issues arise for determination:
i. Whether the Applicant has established sufficient grounds to warrant revision of the custodial sentence imposed by the trial court.
ii. Whether the Applicant's personal circumstances, including his age, health condition, rehabilitation, and the period already served, justify substitution of the remaining custodial sentence with a non-custodial sentence.
4. The Applicant submits that he is a first offender who has demonstrated genuine remorse and has embraced rehabilitation during his incarceration. He contends that he has no previous criminal record and has become a responsible inmate. He relies on Clause 7.19(2) of the Sentencing Policy Guidelines, which encourages courts, where appropriate, to consider non-custodial sentences for first offenders after weighing the seriousness of the offence and all relevant circumstances.
5. He further relies on Clause 7.19(5) of the Sentencing Policy Guidelines, which provides that where an offender is unlikely to pose a threat to the community, a non-custodial sentence may be appropriate, the assessment being informed by a probation report.
6. Pursuant to those submissions, this Court called for a Sentence Review Report. The report portrays the Applicant as cooperative and receptive to rehabilitation. He expresses a desire to continue supporting his family and states that a non-custodial sentence would enable him to do so. He also acknowledges that his incarceration has had a positive impact on his character and outlook. The report further indicates that despite his advancing age and underlying medical conditions, he remains physically capable and is willing to utilise his experience in construction to undertake community service through renovation of public facilities and repair of school furniture.
7. The application is, however, vigorously opposed by the complainant. He deposes that he suffered substantial financial loss at the hands of the Applicant and that the sentence imposed by the trial court was already lenient in the circumstances. In his view, releasing the Applicant prematurely would diminish public confidence in the criminal justice system and embolden perpetrators of economic crimes. He further states that he successfully obtained judgment against the Applicant in civil proceedings, yet the decretal amount remains unpaid.
8. The local administration, through the area Chief, equally opposes the application. The Chief describes the Applicant as a person with a history of deceiving members of the public and evading responsibility by going into hiding. In the Chief's assessment, the Applicant is unlikely to comply with the conditions of a non-custodial sentence and should therefore serve the custodial sentence imposed.
9. I have carefully considered the application, the grounds advanced by the Applicant, the Sentence Review Report, the Victim Impact Statement, and the views expressed by the local administration.
10. The Applicant's status as a first offender, his remorse, positive conduct while in custody, and his willingness to contribute to society are all relevant mitigating considerations. Equally deserving of consideration are his age and underlying health challenges. These factors demonstrate commendable progress towards rehabilitation.
11. Nevertheless, sentencing is guided not only by the interests of the offender but also by the interests of victims, the community, and the administration of justice. The objectives of sentencing include punishment, deterrence, rehabilitation, denunciation of criminal conduct, community protection, accountability, and restorative justice. No single objective should eclipse the others.
12. The record demonstrates that the Applicant benefited from a plea bargain after the trial had already commenced. The sentence ultimately imposed reflected that concession. There is nothing before this Court to suggest that the sentence was unlawful, manifestly excessive, or founded upon any error of principle. Neither has the Applicant demonstrated any impropriety or irregularity in the proceedings capable of invoking this Court's revisionary jurisdiction.
13. Of particular significance is the nature of the offence. The complainant lost Kshs. 4,200,562/= , a substantial sum, through what the trial court found to be a fraudulent criminal enterprise. The loss has not been restituted despite the complainant obtaining judgment in related civil proceedings. Economic crimes of this magnitude inflict not only financial loss upon individual victims but also erode public confidence in commercial transactions and the rule of law.
14. I also take judicial notice that one of the Applicant's co-accused persons remains at large. While that fact is not determinative of this application, it underscores that the criminal enterprise has not been fully brought to account.
15. The reports received by this Court reveal considerable opposition from both the complainant and the local administration. Their concerns are not founded merely upon emotion but upon the Applicant's perceived history of fraudulent conduct and the apprehension that he may fail to comply with a community-based sentence. Those concerns cannot be ignored, particularly where the Sentencing Policy Guidelines require the Court to assess the safety of the community and the suitability of the offender before imposing a non-custodial sentence.
16. The Court is alive to the constitutional imperative that sentencing should promote rehabilitation where appropriate. However, rehabilitation must be balanced against proportionality, deterrence, accountability, and the legitimate expectations of victims that justice will not only be done but will manifestly be seen to be done.
17. In the present case, substituting the custodial sentence with a non-custodial sentence at this stage would, in my respectful view, undermine the objectives of sentencing. It would diminish the seriousness of the offences committed, particularly where the victim has not been compensated and the Applicant has served only a relatively short portion of the sentence imposed following a negotiated plea agreement. Such an outcome would risk conveying the undesirable impression that sophisticated economic crimes attract limited penal consequences.
18. Having carefully examined the record of the subordinate court, I find no illegality, incorrectness, impropriety, or procedural irregularity that would justify the exercise of this Court's revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code. The sentence imposed remains lawful, proportionate, and appropriate in the circumstances.
19. Consequently, I find no merit in the application for revision. The same is hereby dismissed. The applicant to comlete his lawful sentence
20. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
APPLICANT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COUT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE