1. The Applicant herein, vide his undated notice of motion seeks an order for the review of his sentence, so that he serves a probation or community service orders sentence.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 3rd November, 2025 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, unless moved successfully through an appeal, has no jurisdiction to vary the same.
5. I have gone through the record of the lower court and note that the Applicant was convicted on his own plea on two counts of the offence of burglary contrary to Section 304(2) and stealing contrary to Section 279(2) of the Penal Code, Cap 63 Laws of Kenya.
6. It was alleged by the prosecution in the particulars of the offence, which the Applicant did not challenge, that the offences were committed at night.
7. The Applicant was subsequently sentenced to serve 10 years imprisonment on each count and the trial court ordered that the sentences would run from 7th January, 2020 when he took plea, in line with Section 333(2) of the Penal Code, as he had remained in custody. The trial court further ordered that the sentences would run concurrently.
8. Under Section 304(2) of the Penal Code, the maximum sentence for the offence of burglary is 10 years imprisonment.
9. Notably, the Applicant does not challenge the severity of the sentence, which in any event can only properly be challenged through an appeal.
10. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the issue that arise for determination to be as follows:
a. Whether the Applicant has established a lawful basis for the review of his sentence so as to warrant substitution of the custodial sentence with probation or community service orders.
b. Whether this Court has jurisdiction, in the circumstances of this case, to interfere with, vary, or substitute the sentence imposed by the trial court through the present application for review.
c. Whether this Court has the jurisdiction to review and vary a lawful sentence imposed by the trial court, by converting the remaining term of imprisonment into a non-custodial sentence such as probation or community service, on the basis of the Applicant’s alleged rehabilitation, remorse and personal circumstances, in the absence of a successful appeal.
11. On the first issue, the Applicant seeks a review of his sentence on the basis that he is remorseful and has since been rehabilitated and therefore prays that the custodial sentence be substituted with probation or community service orders.
12. The Court has carefully considered the record and notes that the Applicant was convicted on his own plea of guilty on two counts of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(2) of the Penal Code. The sentence imposed by the trial court was ten (10) years imprisonment on each count, ordered to run concurrently and was computed from 7th January, 2020 in line with Section 333(2) of the Penal Code.
13. The Court further notes that under Section 304(2) of the Penal Code, burglary carries a maximum sentence of ten (10) years imprisonment. The sentence imposed was therefore within the lawful statutory limit.
14. The Applicant does not challenge the legality or severity of the sentence but instead seeks substitution on grounds of remorse and alleged rehabilitation. The Court finds that such grounds, while relevant in post-conviction advocacy, do not in themselves constitute a legal basis for review of a lawful sentence imposed within statutory limits.
15. On the second issue, the Court finds that it lacks jurisdiction to review, vary or substitute a lawful sentence through the procedure invoked by the Applicant. The jurisdiction to alter a sentence lawfully imposed by a competent trial court lies within the appellate framework or through other specifically provided statutory mechanisms, and not through a general application for review or revision in the manner presented herein. The Respondent correctly submits that any challenge to the propriety or severity of the sentence ought to be pursued through an appeal.
16. In the circumstances, and having found that the sentence imposed by the trial court was lawful and within statutory limits, this Court finds no legal basis upon which it can grant the orders sought for review or substitution of the sentence with probation or community service.
17. Further, the Court holds that it lacks jurisdiction, in the manner presented by this application, to interfere with or vary a lawful sentence through revision or review as sought by the Applicant. Consequently, the application is incompetent and not properly before this Court.
18. Accordingly, the Applicant’s notice of motion is hereby dismissed.
19. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Juma.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 3rd November, 2025 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, unless moved successfully through an appeal, has no jurisdiction to vary the same.
5. I have gone through the record of the lower court and note that the Applicant was convicted on his own plea on two counts of the offence of burglary contrary to Section 304(2) and stealing contrary to Section 279(2) of the Penal Code, Cap 63 Laws of Kenya.
6. It was alleged by the prosecution in the particulars of the offence, which the Applicant did not challenge, that the offences were committed at night.
7. The Applicant was subsequently sentenced to serve 10 years imprisonment on each count and the trial court ordered that the sentences would run from 7th January, 2020 when he took plea, in line with Section 333(2) of the Penal Code, as he had remained in custody. The trial court further ordered that the sentences would run concurrently.
8. Under Section 304(2) of the Penal Code, the maximum sentence for the offence of burglary is 10 years imprisonment.
9. Notably, the Applicant does not challenge the severity of the sentence, which in any event can only properly be challenged through an appeal.
10. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the issue that arise for determination to be as follows:
a. Whether the Applicant has established a lawful basis for the review of his sentence so as to warrant substitution of the custodial sentence with probation or community service orders.
b. Whether this Court has jurisdiction, in the circumstances of this case, to interfere with, vary, or substitute the sentence imposed by the trial court through the present application for review.
c. Whether this Court has the jurisdiction to review and vary a lawful sentence imposed by the trial court, by converting the remaining term of imprisonment into a non-custodial sentence such as probation or community service, on the basis of the Applicant’s alleged rehabilitation, remorse and personal circumstances, in the absence of a successful appeal.
11. On the first issue, the Applicant seeks a review of his sentence on the basis that he is remorseful and has since been rehabilitated and therefore prays that the custodial sentence be substituted with probation or community service orders.
12. The Court has carefully considered the record and notes that the Applicant was convicted on his own plea of guilty on two counts of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(2) of the Penal Code. The sentence imposed by the trial court was ten (10) years imprisonment on each count, ordered to run concurrently and was computed from 7th January, 2020 in line with Section 333(2) of the Penal Code.
13. The Court further notes that under Section 304(2) of the Penal Code, burglary carries a maximum sentence of ten (10) years imprisonment. The sentence imposed was therefore within the lawful statutory limit.
14. The Applicant does not challenge the legality or severity of the sentence but instead seeks substitution on grounds of remorse and alleged rehabilitation. The Court finds that such grounds, while relevant in post-conviction advocacy, do not in themselves constitute a legal basis for review of a lawful sentence imposed within statutory limits.
15. On the second issue, the Court finds that it lacks jurisdiction to review, vary or substitute a lawful sentence through the procedure invoked by the Applicant. The jurisdiction to alter a sentence lawfully imposed by a competent trial court lies within the appellate framework or through other specifically provided statutory mechanisms, and not through a general application for review or revision in the manner presented herein. The Respondent correctly submits that any challenge to the propriety or severity of the sentence ought to be pursued through an appeal.
16. In the circumstances, and having found that the sentence imposed by the trial court was lawful and within statutory limits, this Court finds no legal basis upon which it can grant the orders sought for review or substitution of the sentence with probation or community service.
17. Further, the Court holds that it lacks jurisdiction, in the manner presented by this application, to interfere with or vary a lawful sentence through revision or review as sought by the Applicant. Consequently, the application is incompetent and not properly before this Court.
18. Accordingly, the Applicant’s notice of motion is hereby dismissed.
19. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Juma.