REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL MISC. APPLICATION NO. E018 OF 2025
(Coram: Andayi W. F., J.)
MWAMUNGA CHIMERA MWAMUNGA............. ……….....…………………...APPLICANT
VERSUS
REPUBLIC THROUGH DPP..........................................................................….RESPONDENT
RULING
1. The undated application herein by Mwamunga Chimera Mwamunga 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 note that the applicant was convicted for the offence of trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) Laws of Kenya that on 25 th August 2022 at around 2300 Hours within Visanyulaweni village, Dzombo location of Lunga Lunga sub-county within Kwale County was found trafficking in 30Kgs of Cannabis by conveying via motorcycle chassis No. LZL12PIA8MHG67112 with a street value of KShs 900,000/= in contravention of the Act.
2. The applicant pleaded not guilty to the charge. After full trial he was found guilty and convicted of the offence as charged in a judgment delivered on 12 th July 2023 and sentenced to pay a fine of KShs 1,000,000/= or serve imprisonment for a period of eight years.
3. Before issuing the sentence the trial court heard the prosecution and the learned prosecutor informed the court that the applicant had a previous conviction in Msambweni Magistrates Court Criminal Case No. 113 of 2020 for the same offence of trafficking in Naroctic drugs. He was sentenced to a fine of KShs 200,000/= and two years’ imprisonment.
4. In mitigation, the applicant informed the trial court that he had seven children and he had been in remand custody for long and he also needed to return the motor cycle.
5. The trial court called for a pre-sentence report which was made available. The report confirmed that the applicant had indeed the previous conviction as stated by the prosecution and he had been released before completing his sentence on prison decongestion exercise.
6. In a well-considered decision delivered on 26 th July 2023 the trial court sentenced the applicant to a fine of KShs 1,000,000/= or to serve imprisonment for a term of eight years. The court also indicated that the sentence was to be computed from the date of arrest.
7. The applicant has filed the present application seeking a review of the said sentence of eight years’ imprisonment. His application is expressed to be brought under Article 50(2)(q) of the Constitution and section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The grounds for the review are as stated in his supporting affidavit, that he was convicted and sentenced as above and is currently serving eight years’ imprisonment. That Article 259 of the Constitution enjoins this court to construe the constitution in a manner that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights and; permits the development of the law and contributes to good governance. He deposes that he has rehabilitated and has been able to acquire skills that will benefit his family. He offers other mitigating factors such as him being asthmatic, about his family circumstances including his parents being disabled. Those would have been made before the trial court and not this court on review of sentence.
8. The applicant prays that his sentence be reviewed to a non-custodial term.
9. I have considered the application herein. The issues for determination are whether the applicant merits a review of his sentence to a non-custodial term and whether the trial court failed to take into account the period he had spent in remand custody while passing the sentence.
10. The second issue can be disposed of at once. Section 333(2) CPC provides as follows:
S. 333(2). Subject to the provisions of section 38 of the Penal Code ( Cap. 63 ) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
11. In this case the trial court clearly stated that the sentence be computed from the time of the applicant’s arrest and this is clearly stated in the committal warrant dated 26 th July 2026. I therefore find that ground to be without merit and it is dismissed.
12. On the ground for review of sentence from imprisonment of eight years to non-custodial, 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.
13. Article 50(2)(q) of the Constitution provides that:
“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.”
14. 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.”
15. 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.
16. 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.
17. 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.”
18. 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.”
19. 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.
20. At the same time, where the sentences imposed by the trial court are in the circumstances commensurate to the gravity of the offence, then the same should be left to run in order for the sentencing objective of the trial court to be served.
21. The applicant herein prays for a sentence review from a term of eight years’ imprisonment to a non-custodial sentence. He was convicted of trafficking in narcotic drugs. The seriousness of that offence is discernible from the sentence prescribed under the law as follows:
S. 4. Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable—
(a) in respect of any narcotic drug or psychotropic substance—
(i) ...
(ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;
22. The maximum term of imprisonment provide for under the said section is fifty years. It is apparent from the above provision of the law that the period of eight years’ imprisonment to which the applicant was sentenced was lenient considering that the maximum term under the law is fifty years’ imprisonment and for a person who had a previous record of conviction for a similar offence.
23. Secondly, the applicant alleges that he has undergone rehabilitation without offering any evidence of how he has been rehabilitated. He alleges to have acquired some technical skills without offering any tangible evidence of how he has acquired the same and any supporting documents such as certificate of completion of a course from a recognized technical institution. His allegations are therefore bare and only meant to be an enticement to be released from custody to which this court cannot fall prey to.
24. I note that the applicant has previously benefited from the prison decongestion exercise. However, he is clearly an example of the offenders who end up spoiling the good intentions and efforts of the criminal justice sector actors of seeking to ensure that prisons are decongested of inmates in order to accord those who remain there fair living conditions. He has thus abused the sentence review jurisdiction of this court through the decongestion exercise by repeating the same offence to an even higher magnitude than before and almost immediately upon his release. Clearly that is not a person who deserves any further consideration for sentence review or even remission of sentence under section 46(4)(a) of the Prisons Act (Cap. 90) Laws of Kenya if the Commissioner of Prisons were to consider that it would be in the interests of the reformation and rehabilitation of the applicant. The applicant deserves and should therefore serve the entire period of eight years’ imprisonment noting that he was lucky to get such a lenient term.
25. I therefore find and hold that the application for review of sentence has no merit and the same is dismissed. The applicant should serve the entire period of eight years’ imprisonment as ordered by the trial court.
26. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Microsoft Teams, this 29 th day of May 2026. The same will be transmitted to prison for delivery to the applicant.
HON. ANDAYI W. F.
JUDGE
HC Criminal Review of Sentence 10
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL MISC. APPLICATION NO. E018 OF 2025
(Coram: Andayi W. F., J.)
MWAMUNGA CHIMERA MWAMUNGA............. ……….....…………………...APPLICANT
VERSUS
REPUBLIC THROUGH DPP..........................................................................….RESPONDENT
RULING
1. The undated application herein by Mwamunga Chimera Mwamunga 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 note that the applicant was convicted for the offence of trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) Laws of Kenya that on 25 th August 2022 at around 2300 Hours within Visanyulaweni village, Dzombo location of Lunga Lunga sub-county within Kwale County was found trafficking in 30Kgs of Cannabis by conveying via motorcycle chassis No. LZL12PIA8MHG67112 with a street value of KShs 900,000/= in contravention of the Act.
2. The applicant pleaded not guilty to the charge. After full trial he was found guilty and convicted of the offence as charged in a judgment delivered on 12 th July 2023 and sentenced to pay a fine of KShs 1,000,000/= or serve imprisonment for a period of eight years.
3. Before issuing the sentence the trial court heard the prosecution and the learned prosecutor informed the court that the applicant had a previous conviction in Msambweni Magistrates Court Criminal Case No. 113 of 2020 for the same offence of trafficking in Naroctic drugs. He was sentenced to a fine of KShs 200,000/= and two years’ imprisonment.
4. In mitigation, the applicant informed the trial court that he had seven children and he had been in remand custody for long and he also needed to return the motor cycle.
5. The trial court called for a pre-sentence report which was made available. The report confirmed that the applicant had indeed the previous conviction as stated by the prosecution and he had been released before completing his sentence on prison decongestion exercise.
6. In a well-considered decision delivered on 26 th July 2023 the trial court sentenced the applicant to a fine of KShs 1,000,000/= or to serve imprisonment for a term of eight years. The court also indicated that the sentence was to be computed from the date of arrest.
7. The applicant has filed the present application seeking a review of the said sentence of eight years’ imprisonment. His application is expressed to be brought under Article 50(2)(q) of the Constitution and section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The grounds for the review are as stated in his supporting affidavit, that he was convicted and sentenced as above and is currently serving eight years’ imprisonment. That Article 259 of the Constitution enjoins this court to construe the constitution in a manner that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights and; permits the development of the law and contributes to good governance. He deposes that he has rehabilitated and has been able to acquire skills that will benefit his family. He offers other mitigating factors such as him being asthmatic, about his family circumstances including his parents being disabled. Those would have been made before the trial court and not this court on review of sentence.
8. The applicant prays that his sentence be reviewed to a non-custodial term.
9. I have considered the application herein. The issues for determination are whether the applicant merits a review of his sentence to a non-custodial term and whether the trial court failed to take into account the period he had spent in remand custody while passing the sentence.
10. The second issue can be disposed of at once. Section 333(2) CPC provides as follows:
S. 333(2). Subject to the provisions of section 38 of the Penal Code ( Cap. 63 ) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
11. In this case the trial court clearly stated that the sentence be computed from the time of the applicant’s arrest and this is clearly stated in the committal warrant dated 26 th July 2026. I therefore find that ground to be without merit and it is dismissed.
12. On the ground for review of sentence from imprisonment of eight years to non-custodial, 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.
13. Article 50(2)(q) of the Constitution provides that:
“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.”
14. 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.”
15. 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.
16. 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.
17. 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.”
18. 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.”
19. 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.
20. At the same time, where the sentences imposed by the trial court are in the circumstances commensurate to the gravity of the offence, then the same should be left to run in order for the sentencing objective of the trial court to be served.
21. The applicant herein prays for a sentence review from a term of eight years’ imprisonment to a non-custodial sentence. He was convicted of trafficking in narcotic drugs. The seriousness of that offence is discernible from the sentence prescribed under the law as follows:
S. 4. Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable—
(a) in respect of any narcotic drug or psychotropic substance—
(i) ...
(ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;
22. The maximum term of imprisonment provide for under the said section is fifty years. It is apparent from the above provision of the law that the period of eight years’ imprisonment to which the applicant was sentenced was lenient considering that the maximum term under the law is fifty years’ imprisonment and for a person who had a previous record of conviction for a similar offence.
23. Secondly, the applicant alleges that he has undergone rehabilitation without offering any evidence of how he has been rehabilitated. He alleges to have acquired some technical skills without offering any tangible evidence of how he has acquired the same and any supporting documents such as certificate of completion of a course from a recognized technical institution. His allegations are therefore bare and only meant to be an enticement to be released from custody to which this court cannot fall prey to.
24. I note that the applicant has previously benefited from the prison decongestion exercise. However, he is clearly an example of the offenders who end up spoiling the good intentions and efforts of the criminal justice sector actors of seeking to ensure that prisons are decongested of inmates in order to accord those who remain there fair living conditions. He has thus abused the sentence review jurisdiction of this court through the decongestion exercise by repeating the same offence to an even higher magnitude than before and almost immediately upon his release. Clearly that is not a person who deserves any further consideration for sentence review or even remission of sentence under section 46(4)(a) of the Prisons Act (Cap. 90) Laws of Kenya if the Commissioner of Prisons were to consider that it would be in the interests of the reformation and rehabilitation of the applicant. The applicant deserves and should therefore serve the entire period of eight years’ imprisonment noting that he was lucky to get such a lenient term.
25. I therefore find and hold that the application for review of sentence has no merit and the same is dismissed. The applicant should serve the entire period of eight years’ imprisonment as ordered by the trial court.
26. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Microsoft Teams, this 29 th day of May 2026. The same will be transmitted to prison for delivery to the applicant.
HON. ANDAYI W. F.
JUDGE
HC Criminal Review of Sentence 10