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1. The applicant was charged with stealing by servant contrary to section 281 of the Penal Code. It was alleged that on diverse dated between July 2013 & 25/7/2024 at Tawa Market, Kiteta Location, Mbooni East Subcounty within Makueni County she stole Kshs. 260,454 the property of Musau Mwania which came into her possession by virtue of her employment .
2. After a full trial, she was found guilty, convicted and sentenced to pay fine of Kshs. 50,000 and compensation of the amount stolen, in default to serve 1 year imprisonment. This was on 10/6/2025. On the same date the cash bail she had deposited of Kshs. 50,000 was converted to compensation.
3. By an application dated 1/7/2025 the applicant filed an application seeking revision of the sentence under section 348, 357, 354 and 362 of the Criminal Procedure Code and Article 25(c) 49, 50(1) and 159 of the Law of Kenya 2010.
4. The grounds are inter alia that the sentence was illegal.
5. I have carefully considered the record.
6. The issue is whether the application has merit.
7. The Penal Code provides different forms of punishment under section 24. It states:
Different kinds of punishments
The following punishments may be inflicted by a court—
a) death;
b) imprisonment or, where the court so determines under the Community Service Orders Act (Cap. 93), community service under a community service order;
c) detention under the Detention Camps Act;
d) deleted by Act No. 5 of 2003, s. 3;
e) fine;
f) forfeiture;
g) payment of compensation;
h) finding security to keep the peace and be of good behaviour;
i) any other punishment provided by this Code or by any other Act .
8. Fines are provided for under section 28, and compensation under section 31.
9. Section 31 states: -
Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.
10. Section 281 of the Penal Code provides that a person found guilty thereunder is liable to imprisonment for 7 years.
11. The trial court chose to sentence the accused to pay a fine.
12. The court in addition order that she pays the total amount that she has found guilty of having stolen as compensation.
13. The trial court was of the view that the complainant herein was injured by the offence.
14. The question is, how then did the court assess the degree of injury and arrive at the compensation that the court did?
What opportunity did the accused have in the determination of what the complainant would be paid as compensation?
15. What stands out from the sentence is that the court decided to punish the accused for the offence and at the same ordered her to refund the money she was found guilty of stealing.
16. In Simon Wamachaba v Republic [2005] KEHC 1993 (KLR) the trial court ordered compensation for defamation - in a criminal case.
The judge was of the view that injury here was physical injury or injury to property: He stated;
With regard to sentence, it was a misdirection on the part of the learned trial magistrate while considering sentence to opine that the character of the complainant was brought into disrepute and to order the appellant to pay Shs.30,000/= under Section 31 of the Penal Code. In the circumstances of this case the compensation envisaged by section 31 of the Penal Code “to any person injured by the offence” on which the appellant was convicted, did not cover the situation obtaining in this case for the simple reason that “injury” under this section does not, in my view, encompass the alleged injury to the character of the complainant. I think the injury envisaged by the section 31 (supra) relates to bodily injury or to damage to the complaint’s property. In the context of this case, it cannot be said that the information by the Appellant to PW7 injured the character of the complainant when in fact all that it did was to state that the latter was holding the goods of the appellant to secure the repayment of the debt allegedly due by the latter to him. I do not find it necessary to go into the interpretation of the words “compensation to any person injured by his offence” in Section 31 of the Penal Code but I can well visualize a situation where character assassination might well fall within the section. Not so here
17. In this case the trial court did not just order compensation but ordered the refund of the total sum in addition to the applicant serving a term of imprisonment. This is confusing. It would appear that in actual sense the ‘compensation’ became part of the fine and the total fine became Kshs. 260,454 +50,000 = 310,454 in default to serve 1year imprisonment. The meaning of that is that once the applicant served the term, there would nothing to be claimed from the applicant. Clearly what was referred to as compensation was not compensation in the real sense but part of the punishment.
18. The applicant’s cash bail was converted to compensation. On the other hand, this could mean that out of the Ksh 260, 454 she had paid Ksh. 50,000 leaving a balance of Ksh 210, 454, and a fine of Ksh 50,000. So can she pay the fine and be released from prison, or must she pay the fine and the compensation before she can leave prison?
19. A sentence must be clear as it takes away the liberty of the person involved. In this case the trial court needed to separate the two, the punishment for the offence, and the compensation, and give directions on how the compensation would be paid. The default for paying compensation is not imprisonment but recovery through execution process.
20. By conflating the punishment and the compensation , the punishment became excessive, if one considers that the total fine exceeded the amount said to have been stolen as it is clear that fine was not Kshs. 50,000 the fine was Kshs. 310,454 but the trial court did not pronounce it as such.
21. The revisionary power of the court under section 362 is to satisfy itself of correction, legality on propriety of finding, sentence, order of the subordinate court.
22. I find that the application for revision of the sentence has merit.
23. I sought social inquiry report from Probation &Aftercare Services.
24. The report states that the applicant does not own up to the offence - yet she seeks revision of the sentence. She seeks the leniency of his court on the basis that her children who are minors are suffering as they are in the custody of their grandmother .
25. The applicant though not owning up to the offence is not before me challenging the conviction.
26. The sentence is revised thus:
The applicant to pay a fine of Ksh. 50,000 in default to serve 1 year imprisonment. The Prison Authorities to work out the balance of the fine from 10th June 2025 to the date of her release from custody for her to pay.
The complainant has recourse - to sue her and recover the money from her. Hence, the applicant to pay the balance of the sum of money found to have been stolen in default the complainant is at liberty to sue to recover the same.
Final orders:
Applicant to pay a fine of Ksh 50,000 in default to serve 1 year imprisonment to be calculated from 10th June 2025.
Dated, signed and delivered this 14th day of November, 2025
Mumbua T Matheka
Judge
Chrispol CA
Applicant
Mr. Kazungu for State
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1. The applicant was charged with stealing by servant contrary to section 281 of the Penal Code. It was alleged that on diverse dated between July 2013 & 25/7/2024 at Tawa Market, Kiteta Location, Mbooni East Subcounty within Makueni County she stole Kshs. 260,454 the property of Musau Mwania which came into her possession by virtue of her employment .
2. After a full trial, she was found guilty, convicted and sentenced to pay fine of Kshs. 50,000 and compensation of the amount stolen, in default to serve 1 year imprisonment. This was on 10/6/2025. On the same date the cash bail she had deposited of Kshs. 50,000 was converted to compensation.
3. By an application dated 1/7/2025 the applicant filed an application seeking revision of the sentence under section 348, 357, 354 and 362 of the Criminal Procedure Code and Article 25(c) 49, 50(1) and 159 of the Law of Kenya 2010.
4. The grounds are inter alia that the sentence was illegal.
5. I have carefully considered the record.
6. The issue is whether the application has merit.
7. The Penal Code provides different forms of punishment under section 24. It states:
Different kinds of punishments
The following punishments may be inflicted by a court—
a) death;
b) imprisonment or, where the court so determines under the Community Service Orders Act (Cap. 93), community service under a community service order;
c) detention under the Detention Camps Act;
d) deleted by Act No. 5 of 2003, s. 3;
e) fine;
f) forfeiture;
g) payment of compensation;
h) finding security to keep the peace and be of good behaviour;
i) any other punishment provided by this Code or by any other Act .
8. Fines are provided for under section 28, and compensation under section 31.
9. Section 31 states: -
Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.
10. Section 281 of the Penal Code provides that a person found guilty thereunder is liable to imprisonment for 7 years.
11. The trial court chose to sentence the accused to pay a fine.
12. The court in addition order that she pays the total amount that she has found guilty of having stolen as compensation.
13. The trial court was of the view that the complainant herein was injured by the offence.
14. The question is, how then did the court assess the degree of injury and arrive at the compensation that the court did?
What opportunity did the accused have in the determination of what the complainant would be paid as compensation?
15. What stands out from the sentence is that the court decided to punish the accused for the offence and at the same ordered her to refund the money she was found guilty of stealing.
16. In Simon Wamachaba v Republic [2005] KEHC 1993 (KLR) the trial court ordered compensation for defamation - in a criminal case.
The judge was of the view that injury here was physical injury or injury to property: He stated;
With regard to sentence, it was a misdirection on the part of the learned trial magistrate while considering sentence to opine that the character of the complainant was brought into disrepute and to order the appellant to pay Shs.30,000/= under Section 31 of the Penal Code. In the circumstances of this case the compensation envisaged by section 31 of the Penal Code “to any person injured by the offence” on which the appellant was convicted, did not cover the situation obtaining in this case for the simple reason that “injury” under this section does not, in my view, encompass the alleged injury to the character of the complainant. I think the injury envisaged by the section 31 (supra) relates to bodily injury or to damage to the complaint’s property. In the context of this case, it cannot be said that the information by the Appellant to PW7 injured the character of the complainant when in fact all that it did was to state that the latter was holding the goods of the appellant to secure the repayment of the debt allegedly due by the latter to him. I do not find it necessary to go into the interpretation of the words “compensation to any person injured by his offence” in Section 31 of the Penal Code but I can well visualize a situation where character assassination might well fall within the section. Not so here
17. In this case the trial court did not just order compensation but ordered the refund of the total sum in addition to the applicant serving a term of imprisonment. This is confusing. It would appear that in actual sense the ‘compensation’ became part of the fine and the total fine became Kshs. 260,454 +50,000 = 310,454 in default to serve 1year imprisonment. The meaning of that is that once the applicant served the term, there would nothing to be claimed from the applicant. Clearly what was referred to as compensation was not compensation in the real sense but part of the punishment.
18. The applicant’s cash bail was converted to compensation. On the other hand, this could mean that out of the Ksh 260, 454 she had paid Ksh. 50,000 leaving a balance of Ksh 210, 454, and a fine of Ksh 50,000. So can she pay the fine and be released from prison, or must she pay the fine and the compensation before she can leave prison?
19. A sentence must be clear as it takes away the liberty of the person involved. In this case the trial court needed to separate the two, the punishment for the offence, and the compensation, and give directions on how the compensation would be paid. The default for paying compensation is not imprisonment but recovery through execution process.
20. By conflating the punishment and the compensation , the punishment became excessive, if one considers that the total fine exceeded the amount said to have been stolen as it is clear that fine was not Kshs. 50,000 the fine was Kshs. 310,454 but the trial court did not pronounce it as such.
21. The revisionary power of the court under section 362 is to satisfy itself of correction, legality on propriety of finding, sentence, order of the subordinate court.
22. I find that the application for revision of the sentence has merit.
23. I sought social inquiry report from Probation &Aftercare Services.
24. The report states that the applicant does not own up to the offence - yet she seeks revision of the sentence. She seeks the leniency of his court on the basis that her children who are minors are suffering as they are in the custody of their grandmother .
25. The applicant though not owning up to the offence is not before me challenging the conviction.
26. The sentence is revised thus:
The applicant to pay a fine of Ksh. 50,000 in default to serve 1 year imprisonment. The Prison Authorities to work out the balance of the fine from 10th June 2025 to the date of her release from custody for her to pay.
The complainant has recourse - to sue her and recover the money from her. Hence, the applicant to pay the balance of the sum of money found to have been stolen in default the complainant is at liberty to sue to recover the same.
Final orders:
Applicant to pay a fine of Ksh 50,000 in default to serve 1 year imprisonment to be calculated from 10th June 2025.
Dated, signed and delivered this 14th day of November, 2025
Mumbua T Matheka
Judge
Chrispol CA
Applicant
Mr. Kazungu for State
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