A. INTRODUCTION
1. The Applicant, Peter Kiprono Koech, was jointly charged with Samuel Kibet Langat, with whom he was tried together in Kericho CMCR No. E706 of 2025 and who has separately sought revision of his own sentence in Criminal Revision Application No. E030 of 2025, with conspiracy to commit a felony contrary to Section 393 of the Penal Code, the particulars being that on 7th February 2025 at Kericho Township, Kericho East Sub-County within Kericho County, they jointly conspired to commit a felony, namely obtaining Kshs. 10,000 from Mercy Chebwogen Bett by false pretences, by falsely pretending they were in a position to secure the release of a suspect from Kericho GK Prison. This was the sole count the Applicant faced.
2. On 3rd April 2025, the Applicant pleaded guilty to and was convicted on this count. The facts admitted were that on 7th February 2025, the complainant travelled to Kericho town to secure her husband's release from custody and met the Applicant and his co-accused, who told her that the court required Kshs. 10,000 for that purpose. She handed the co-accused the money, who proceeded towards Kericho Law Courts while she remained with the Applicant. Shortly after, the co-accused returned and they visited the complainant's husband. On 9th February 2025, the co-accused went to the complainant's home and told her that a further Kshs. 3,000 was required; as she did not have the money, she gave him her mobile phone, valued at Kshs. 22,000, as security, on the understanding that Kshs. 2,000 would be paid on her behalf. The complainant waited for her husband's release until 1st April 2025, when she went to court and learned that no money had ever been paid on his behalf. She reported the matter and the Applicant was arrested.
3. The Applicant confirmed the facts as true. In mitigation, he sought forgiveness. It is now confirmed, and I proceed on this footing, that the complainant was in fact never compensated.
4. In sentencing, the trial magistrate observed that the Applicant had defrauded the complainant in the name of the court, painting the court as corrupt, undermining public confidence in the judiciary, and that a deterrent sentence was warranted. He sentenced the Applicant to 4 years' imprisonment.
B. THE APPLICATION AND THE APPLICANT'S SUBMISSIONS
5. The Applicant, by an Application dated 22nd December 2025, sought that this Court call for and examine the record in Kericho CMCR No. E706 of 2025 to satisfy itself as to the correctness, legality, and propriety of the sentence imposed, and prayed that it be reviewed, varied, or set aside and substituted with a lesser, non-custodial sentence, a fine, or probation, alternatively that the period already served be considered sufficient punishment, and for such further relief as the Court might deem fit. He grounded the Application on the trial magistrate's failure to consider a fine or other non-custodial sentence as required by the Sentencing Policy Guidelines; his remorse and status as a first offender; the hardship his incarceration causes his young, dependent children; a claimed reconciliation with the complainant which, he says, the trial court failed to take into account; and the submission that the sentence was harsh and excessive in the circumstances. He also relied on this Court's supervisory jurisdiction under Article 165(3) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code.
6. In submissions, the Applicant emphasised that his guilty plea saved judicial time and prosecutorial resources, that the Sentencing Policy Guidelines require a sentence to be commensurate and proportionate, and that, although the trial court had discretion in sentencing, that discretion was exercised harshly and excessively in the circumstances; he submitted that a probation sentence would suffice and prayed for revision accordingly.
C. THE RESPONDENT'S SUBMISSIONS
7. The prosecution opposed the Application, submitting that the Applicant had not demonstrated that the sentence was illegal or excessive in the circumstances, and that the trial court was entitled to weigh aggravating factors notwithstanding the guilty plea. It submitted that the offence involved obtaining money from a vulnerable person who did not understand court procedure, using money intended for her husband's bond; that such conduct, carried out within court precincts and in the name of the judiciary, brings the justice system into disrepute and is a vice the courts are working to curb; that it was a planned offence targeting a vulnerable member of the public; and that the sentence imposed should not be disturbed. It further submitted that the Applicant had not shown that the complainant had been compensated, and that the sentence should stand as a deterrent to similar conduct, this being the basis on which the trial court arrived at it.
D. ANALYSIS AND DETERMINATION
8. Unlike an application concerning a sentence passed by this Court itself, this is a straightforward exercise of the High Court's revisionary jurisdiction over a subordinate court under Sections 362 and 364 of the Criminal Procedure Code and its supervisory jurisdiction under Article 165(3)(b) of the Constitution. The sentence under review was imposed by a magistrate's court in Kericho CMCR No. E706 of 2025, and this Court is properly seized of the matter to satisfy itself as to the correctness, legality, and propriety of that sentence.
9. Before turning to that question, I address the Applicant's submission that the sentence was, quite apart from any issue of legality, harsh or excessive on ordinary sentencing principles. It was not. The Applicant did not simply defraud the complainant; he and his co-accused did so by trading on the authority and reputation of this Court itself, falsely representing that money was required by the court to secure her husband's release, at a time when she was anxious and vulnerable and trying to navigate a process she did not understand. The courts are the guardians of the rule of law, and they can perform that function only for as long as the public retains faith in their integrity. Public trust in the judiciary is not a peripheral value; it is the foundation on which the entire administration of justice rests, and it must be safeguarded with vigilance. Any conduct that trades on the court's name to extract money from unsuspecting members of the public creates in the public mind an association between the courts and corruption, an association the courts must at every turn resist and repudiate. The judiciary must not only be free of corruption but must be seen, unequivocally, to be free of it, and to have no tolerance whatsoever for those who invoke its name or process for personal gain. Conduct of this kind causes harm well beyond the pecuniary loss to the individual complainant: it corrodes public confidence in the administration of justice, undermines the constitutional guarantee of access to a judiciary that is impartial and free from improper influence, and strikes at the integrity of the institution itself. A trial court is accordingly not merely entitled but duty-bound to impose a firm, deterrent sentence to address it, so as to signal in the clearest terms that the courts will not be linked to, associated with, or seen to tolerate corruption or its perception, as the Sentencing Policy Guidelines themselves contemplate for offences involving abuse of trust or public office. The Applicant's submission that the sentence was harsh or excessive accordingly fails.
10. I raise, of my own motion, a further matter going to the legality of the sentence, which neither party addressed. Section 393 of the Penal Code, under which the Applicant was charged, criminalises conspiracy to commit a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than seven years, then to that lesser punishment. It is, by its own terms, confined to conspiracies to commit an offence that is a felony.
11. The offence the Applicant and his co-accused are alleged to have conspired to commit was obtaining money by false pretences contrary to Section 313 of the Penal Code. That section, however, expressly provides that a person convicted under it 'is guilty of a misdemeanour' — not a felony — notwithstanding that it carries a maximum term of three years, a penalty that might otherwise suggest felony status under the general definition in Section 4 of the Penal Code. Where a specific provision expressly designates an offence a misdemeanour, that express designation governs over the general definition. The offence conspired to be committed was accordingly a misdemeanour, not a felony, and the applicable provision was Section 394 of the Penal Code — conspiracy to commit a misdemeanour — under which a person convicted 'is guilty of a misdemeanour'. Section 394 prescribes no specific penalty of its own, and so falls to be punished under the general punishment for misdemeanours in Section 36 of the Penal Code, namely imprisonment for a term not exceeding two years, or a fine, or both. This is not merely a matter of statutory construction; it reflects actual charging practice recognised by the Directorate of Public Prosecutions itself. In Republic v Director of Public Prosecutions & another Ex Parte Laban Njuguna Gichohi [2017] eKLR, a suspect accused of conspiring with others to obtain money by falsely pretending to sell goods was charged, in the alternative to a substantive count, with conspiracy to commit a misdemeanour contrary to Section 394 of the Penal Code, precisely because the underlying scheme was one of obtaining by false pretences. That case confirms that a conspiracy whose object is an offence of obtaining by false pretences is properly charged under Section 394, not Section 393, and anchors the classification adopted here in more than bare statutory interpretation.
12. On this analysis, the maximum lawful sentence available, properly characterised, was two years' imprisonment, not seven, and the four-year sentence imposed exceeds that maximum by two years. This is not a matter of discretion or of weighing mitigating and aggravating factors; a sentence exceeding the maximum the law allows for the offence of conviction is manifestly excessive in the most literal sense (Wanjema v Republic [1971] EA 493), and I so find. I flag, however, that this is a point I raise of the Court's own motion rather than one argued by either party, and being a somewhat technical question of statutory classification.
13. The sentence must accordingly be set aside and substituted with a lawful one. Having regard to the aggravating factors present — the deliberate targeting of a vulnerable complainant and the abuse of the court's name and reputation in the commission of the offence, and the imperative that courts stand firmly against any conduct capable of associating them with corruption — and noting, as recorded above, that the claimed reconciliation with the complainant was not substantiated before this Court and that the complainant remains uncompensated, I consider a sentence at the statutory maximum of two years' imprisonment to be justified.
E. DISPOSITION
14. The upshot is that:
(a). The Application succeeds in part;
(b). The sentence of 4 years imposed on the Applicant is set aside and substituted with a sentence of 2 years' imprisonment;
(c). The Applicant's effective custodial term is accordingly 2 years from the original date of sentencing;
It is so ordered.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 30TH DAY OF JULY 2026.
In the presence of
Applicant
Loice Osoro for the State
C/A Irene Chelang'at
1. The Applicant, Peter Kiprono Koech, was jointly charged with Samuel Kibet Langat, with whom he was tried together in Kericho CMCR No. E706 of 2025 and who has separately sought revision of his own sentence in Criminal Revision Application No. E030 of 2025, with conspiracy to commit a felony contrary to Section 393 of the Penal Code, the particulars being that on 7th February 2025 at Kericho Township, Kericho East Sub-County within Kericho County, they jointly conspired to commit a felony, namely obtaining Kshs. 10,000 from Mercy Chebwogen Bett by false pretences, by falsely pretending they were in a position to secure the release of a suspect from Kericho GK Prison. This was the sole count the Applicant faced.
2. On 3rd April 2025, the Applicant pleaded guilty to and was convicted on this count. The facts admitted were that on 7th February 2025, the complainant travelled to Kericho town to secure her husband's release from custody and met the Applicant and his co-accused, who told her that the court required Kshs. 10,000 for that purpose. She handed the co-accused the money, who proceeded towards Kericho Law Courts while she remained with the Applicant. Shortly after, the co-accused returned and they visited the complainant's husband. On 9th February 2025, the co-accused went to the complainant's home and told her that a further Kshs. 3,000 was required; as she did not have the money, she gave him her mobile phone, valued at Kshs. 22,000, as security, on the understanding that Kshs. 2,000 would be paid on her behalf. The complainant waited for her husband's release until 1st April 2025, when she went to court and learned that no money had ever been paid on his behalf. She reported the matter and the Applicant was arrested.
3. The Applicant confirmed the facts as true. In mitigation, he sought forgiveness. It is now confirmed, and I proceed on this footing, that the complainant was in fact never compensated.
4. In sentencing, the trial magistrate observed that the Applicant had defrauded the complainant in the name of the court, painting the court as corrupt, undermining public confidence in the judiciary, and that a deterrent sentence was warranted. He sentenced the Applicant to 4 years' imprisonment.
B. THE APPLICATION AND THE APPLICANT'S SUBMISSIONS
5. The Applicant, by an Application dated 22nd December 2025, sought that this Court call for and examine the record in Kericho CMCR No. E706 of 2025 to satisfy itself as to the correctness, legality, and propriety of the sentence imposed, and prayed that it be reviewed, varied, or set aside and substituted with a lesser, non-custodial sentence, a fine, or probation, alternatively that the period already served be considered sufficient punishment, and for such further relief as the Court might deem fit. He grounded the Application on the trial magistrate's failure to consider a fine or other non-custodial sentence as required by the Sentencing Policy Guidelines; his remorse and status as a first offender; the hardship his incarceration causes his young, dependent children; a claimed reconciliation with the complainant which, he says, the trial court failed to take into account; and the submission that the sentence was harsh and excessive in the circumstances. He also relied on this Court's supervisory jurisdiction under Article 165(3) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code.
6. In submissions, the Applicant emphasised that his guilty plea saved judicial time and prosecutorial resources, that the Sentencing Policy Guidelines require a sentence to be commensurate and proportionate, and that, although the trial court had discretion in sentencing, that discretion was exercised harshly and excessively in the circumstances; he submitted that a probation sentence would suffice and prayed for revision accordingly.
C. THE RESPONDENT'S SUBMISSIONS
7. The prosecution opposed the Application, submitting that the Applicant had not demonstrated that the sentence was illegal or excessive in the circumstances, and that the trial court was entitled to weigh aggravating factors notwithstanding the guilty plea. It submitted that the offence involved obtaining money from a vulnerable person who did not understand court procedure, using money intended for her husband's bond; that such conduct, carried out within court precincts and in the name of the judiciary, brings the justice system into disrepute and is a vice the courts are working to curb; that it was a planned offence targeting a vulnerable member of the public; and that the sentence imposed should not be disturbed. It further submitted that the Applicant had not shown that the complainant had been compensated, and that the sentence should stand as a deterrent to similar conduct, this being the basis on which the trial court arrived at it.
D. ANALYSIS AND DETERMINATION
8. Unlike an application concerning a sentence passed by this Court itself, this is a straightforward exercise of the High Court's revisionary jurisdiction over a subordinate court under Sections 362 and 364 of the Criminal Procedure Code and its supervisory jurisdiction under Article 165(3)(b) of the Constitution. The sentence under review was imposed by a magistrate's court in Kericho CMCR No. E706 of 2025, and this Court is properly seized of the matter to satisfy itself as to the correctness, legality, and propriety of that sentence.
9. Before turning to that question, I address the Applicant's submission that the sentence was, quite apart from any issue of legality, harsh or excessive on ordinary sentencing principles. It was not. The Applicant did not simply defraud the complainant; he and his co-accused did so by trading on the authority and reputation of this Court itself, falsely representing that money was required by the court to secure her husband's release, at a time when she was anxious and vulnerable and trying to navigate a process she did not understand. The courts are the guardians of the rule of law, and they can perform that function only for as long as the public retains faith in their integrity. Public trust in the judiciary is not a peripheral value; it is the foundation on which the entire administration of justice rests, and it must be safeguarded with vigilance. Any conduct that trades on the court's name to extract money from unsuspecting members of the public creates in the public mind an association between the courts and corruption, an association the courts must at every turn resist and repudiate. The judiciary must not only be free of corruption but must be seen, unequivocally, to be free of it, and to have no tolerance whatsoever for those who invoke its name or process for personal gain. Conduct of this kind causes harm well beyond the pecuniary loss to the individual complainant: it corrodes public confidence in the administration of justice, undermines the constitutional guarantee of access to a judiciary that is impartial and free from improper influence, and strikes at the integrity of the institution itself. A trial court is accordingly not merely entitled but duty-bound to impose a firm, deterrent sentence to address it, so as to signal in the clearest terms that the courts will not be linked to, associated with, or seen to tolerate corruption or its perception, as the Sentencing Policy Guidelines themselves contemplate for offences involving abuse of trust or public office. The Applicant's submission that the sentence was harsh or excessive accordingly fails.
10. I raise, of my own motion, a further matter going to the legality of the sentence, which neither party addressed. Section 393 of the Penal Code, under which the Applicant was charged, criminalises conspiracy to commit a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than seven years, then to that lesser punishment. It is, by its own terms, confined to conspiracies to commit an offence that is a felony.
11. The offence the Applicant and his co-accused are alleged to have conspired to commit was obtaining money by false pretences contrary to Section 313 of the Penal Code. That section, however, expressly provides that a person convicted under it 'is guilty of a misdemeanour' — not a felony — notwithstanding that it carries a maximum term of three years, a penalty that might otherwise suggest felony status under the general definition in Section 4 of the Penal Code. Where a specific provision expressly designates an offence a misdemeanour, that express designation governs over the general definition. The offence conspired to be committed was accordingly a misdemeanour, not a felony, and the applicable provision was Section 394 of the Penal Code — conspiracy to commit a misdemeanour — under which a person convicted 'is guilty of a misdemeanour'. Section 394 prescribes no specific penalty of its own, and so falls to be punished under the general punishment for misdemeanours in Section 36 of the Penal Code, namely imprisonment for a term not exceeding two years, or a fine, or both. This is not merely a matter of statutory construction; it reflects actual charging practice recognised by the Directorate of Public Prosecutions itself. In Republic v Director of Public Prosecutions & another Ex Parte Laban Njuguna Gichohi [2017] eKLR, a suspect accused of conspiring with others to obtain money by falsely pretending to sell goods was charged, in the alternative to a substantive count, with conspiracy to commit a misdemeanour contrary to Section 394 of the Penal Code, precisely because the underlying scheme was one of obtaining by false pretences. That case confirms that a conspiracy whose object is an offence of obtaining by false pretences is properly charged under Section 394, not Section 393, and anchors the classification adopted here in more than bare statutory interpretation.
12. On this analysis, the maximum lawful sentence available, properly characterised, was two years' imprisonment, not seven, and the four-year sentence imposed exceeds that maximum by two years. This is not a matter of discretion or of weighing mitigating and aggravating factors; a sentence exceeding the maximum the law allows for the offence of conviction is manifestly excessive in the most literal sense (Wanjema v Republic [1971] EA 493), and I so find. I flag, however, that this is a point I raise of the Court's own motion rather than one argued by either party, and being a somewhat technical question of statutory classification.
13. The sentence must accordingly be set aside and substituted with a lawful one. Having regard to the aggravating factors present — the deliberate targeting of a vulnerable complainant and the abuse of the court's name and reputation in the commission of the offence, and the imperative that courts stand firmly against any conduct capable of associating them with corruption — and noting, as recorded above, that the claimed reconciliation with the complainant was not substantiated before this Court and that the complainant remains uncompensated, I consider a sentence at the statutory maximum of two years' imprisonment to be justified.
E. DISPOSITION
14. The upshot is that:
(a). The Application succeeds in part;
(b). The sentence of 4 years imposed on the Applicant is set aside and substituted with a sentence of 2 years' imprisonment;
(c). The Applicant's effective custodial term is accordingly 2 years from the original date of sentencing;
It is so ordered.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 30TH DAY OF JULY 2026.
In the presence of
Applicant
Loice Osoro for the State
C/A Irene Chelang'at