1. The Applicant was convicted, on his own plea of guilty, of the offence of burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code in Nyamira CMCRC E204 of 2025. The particulars were that on the night of 23rd and 24th March 2025, he broke into the complainant's poultry shed and stole one goose and two ducks valued at KES. 8,000. He was thereafter sentenced to four (4) years' imprisonment. By the present application, he seeks a reduction of that sentence to the period already served.
2. Sentencing is a matter of judicial discretion and an appellate court will not ordinarily interfere with the sentence imposed by a trial court unless it is shown that the trial court acted on wrong principles, overlooked relevant factors, considered irrelevant matters, imposed an unlawful sentence or that the sentence is manifestly excessive in the circumstances. In determining whether interference is warranted, the Court is guided by the applicable law and the Judiciary Sentencing Policy Guidelines, 2023.
3. Section 304(2) of the Penal Code provides that a person convicted of burglary is liable to imprisonment for a term not exceeding ten years. The provision does not prescribe a mandatory minimum sentence. Further, section 26(3) of the Penal Code empowers a court, where no mandatory minimum sentence is prescribed, to impose a fine in addition to or in substitution for imprisonment. The law therefore leaves the sentencing court with the discretion to determine whether the circumstances of a particular case call for a custodial or a non-custodial sentence.
4. The Judiciary Sentencing Policy Guidelines, 2023 emphasise that 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 Guidelines further caution that imprisonment of petty offenders should generally be avoided because the rehabilitative objective of sentencing is rarely achieved through short custodial terms, which are often disruptive and may contribute to re-offending. They also require the court, in deciding whether to impose a custodial or non-custodial sentence, to consider, among other factors, the gravity of the offence and the offender's criminal history. In the absence of aggravating circumstances, imprisonment should generally be avoided where the offence falls below the custody threshold, and first offenders should ordinarily be considered for non-custodial sentences.
5. I have considered the record of the trial court in light of those principles. The Applicant pleaded guilty at the earliest opportunity, thereby accepting responsibility for his actions and saving judicial time. He is a first offender. There is nothing on record to suggest that violence was used or that the complainant sustained any injury. Although burglary is a serious offence that undermines the security of people's homes and property and should not be encouraged, the circumstances of this case disclose no aggravating features that would place it above the custody threshold contemplated by the Sentencing Policy Guidelines.
6. The record further shows that the Applicant was arrested on 28th March 2025 and has remained in custody since then. As at the date of this ruling, he has served approximately one year, three months and sixteen days in prison.
7. Accordingly, the application succeeds. The sentence of four (4) years' imprisonment imposed by the trial court is hereby set aside and substituted with the period already served. The Applicant shall be released forthwith unless he is otherwise lawfully held.
2. Sentencing is a matter of judicial discretion and an appellate court will not ordinarily interfere with the sentence imposed by a trial court unless it is shown that the trial court acted on wrong principles, overlooked relevant factors, considered irrelevant matters, imposed an unlawful sentence or that the sentence is manifestly excessive in the circumstances. In determining whether interference is warranted, the Court is guided by the applicable law and the Judiciary Sentencing Policy Guidelines, 2023.
3. Section 304(2) of the Penal Code provides that a person convicted of burglary is liable to imprisonment for a term not exceeding ten years. The provision does not prescribe a mandatory minimum sentence. Further, section 26(3) of the Penal Code empowers a court, where no mandatory minimum sentence is prescribed, to impose a fine in addition to or in substitution for imprisonment. The law therefore leaves the sentencing court with the discretion to determine whether the circumstances of a particular case call for a custodial or a non-custodial sentence.
4. The Judiciary Sentencing Policy Guidelines, 2023 emphasise that 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 Guidelines further caution that imprisonment of petty offenders should generally be avoided because the rehabilitative objective of sentencing is rarely achieved through short custodial terms, which are often disruptive and may contribute to re-offending. They also require the court, in deciding whether to impose a custodial or non-custodial sentence, to consider, among other factors, the gravity of the offence and the offender's criminal history. In the absence of aggravating circumstances, imprisonment should generally be avoided where the offence falls below the custody threshold, and first offenders should ordinarily be considered for non-custodial sentences.
5. I have considered the record of the trial court in light of those principles. The Applicant pleaded guilty at the earliest opportunity, thereby accepting responsibility for his actions and saving judicial time. He is a first offender. There is nothing on record to suggest that violence was used or that the complainant sustained any injury. Although burglary is a serious offence that undermines the security of people's homes and property and should not be encouraged, the circumstances of this case disclose no aggravating features that would place it above the custody threshold contemplated by the Sentencing Policy Guidelines.
6. The record further shows that the Applicant was arrested on 28th March 2025 and has remained in custody since then. As at the date of this ruling, he has served approximately one year, three months and sixteen days in prison.
7. Accordingly, the application succeeds. The sentence of four (4) years' imprisonment imposed by the trial court is hereby set aside and substituted with the period already served. The Applicant shall be released forthwith unless he is otherwise lawfully held.