The applicant was charged with the offence of being in possession of public stores contrary to section 324(3) as read with section 36 of the Penal code in Makueni Magistrates’ Court criminal case number E068 of 2025.
The particulars were that on the 9th day of February, 2025 at around 0030 hours in Wote within Makueni County, he had in his possession public stores, namely a pair of handcuffs. BARNABY MODE 3020 serial number 201900 485 and its key the property of disciplined forces, such property being reasonably suspected of having been stolen or unlawfully obtained.
When the charges were read to him the accused person pleaded guilty to both the charge and the facts. In mitigation, he simply stated I plead for leniency. There was no explanation as to how he came to be in possession of the said handcuffs, or what he was doing with them at that hour, in that place.
The learned trial magistrate considered his plea and his mitigation. Took account of the circumstances of the offence considered the same to be serious and sentenced the accused to 18 months imprisonment.
Through a Notice of Motion dated 11th of June 2025 the applicant sought the revision of his sentence under section 362 and 364 of the Criminal Procedure Code.
He sought orders that the sentence of 18 months be substituted with a non-custodial sentence or in the alternative to non-custodial sentence he be given the option of a fine the amount of fine to be determined by the honorable court.
That the offence he was charged with was a misdemeanor and therefore a non-custodial sentence would be the most appropriate sentence. Further that the trail Court ought to have given him an option of fine. That the Guideline 11.5 of the Sentencing Policy Guidelines provides that where the option of a fine is provided, the court must first consider it before proceeding to impose a custodial sentence and if the sentence of a fine is not suitable, then the court should expressly indicate so as it proceeds to impose the available option. That in this case, the trial court did not indicate why it did not consider the option of fine.
In addition, he averred that the sentence meted by the trial court was manifestly excessive in that there were no aggravating factors, justifying the 18 months imprisonment without an option of fine. He referred the court to guideline 23:8 of the Sentencing Guidelines on mitigating factors, the court should have considered that the applicant was a first offender and did not have any intention of committing an offense with the public stores.
That in any event, the sentencing policy guidelines require the court to consider the gravity of the offense, the criminal history of the offender the character of the offender and the protection of the community in deciding whether or not to grant non-custodial sentence.
He added that he had been in prison since 10th February 2025 and in the course of imprisonment the applicant had reformed and was ready for integration back to society. The applicant is married with a child and the wife and the child solely depend on the applicant.
The application was supported by his affidavit sworn on a date not indicated in the document.
The applicant filed submissions arguing the application on several grounds; That the sentence has an option of fine, which should have been given as there were no aggravating factors; that mitigating factors were not considered including his age ;that the applicant was a first offender that the applicant is remorseful and was willing to serve a non-custodial sentence; That the applicant had reformed; that the applicant is the breadwinner with his family and the applicant is a convict of a misdemeanor.
To support his submission, he has cited various authorities which I have considered.
The provisions relied upon by the applicant’s state follows.
362. Power of High Court to call for records
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.
364. Powers of High Court on revision
(1)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—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
Accordingly, the Applicant is asking this court to consider the correctness, legality or propriety of his sentence.
Section 324 (3) of the Penal Code states;
Any person conveying or having in his possession, or keeping in any building or place, whether open or enclosed, any stores being the property of the disciplined forces, which may reasonably be suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, shall be guilty of a misdemeanour.
Section 36 of the same Code provides General punishment for misdemeanours
When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.
The issue for determination is whether the application has any merit. Has the applicant placed any material before this court to bring his sentence into the purview of s, 362 of the CPC?
To begin with Section 364 (5) of the Criminal Procedure Code states
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
Further s, 348 of the same Code states;
348. No appeal on plea of guilty, nor in petty cases
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
The applicant had a right of appeal as to the extent and legality of the sentence , the same thing he has brought for revision. He ought to have filed an appeal against it.
Be that as it may, the parameters for revision are set out at s. 362.
The issue was the sentence.
I find illumination on the issue in Dahir Hussein v Republic [2015] KEHC 636 (KLR) where the Judge was dealing with a similar issue on appeal. He stated:
14. The issue before me is on severity of sentence. What is the applicable law in the case of OGOLA S/O OWUORA VS. REGINA 1954 EACA 290. The appellate court dealt with the issue and sets out the guiding principles to deal with matters of this nature.
The court stated:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial judge unless it is evident that the judge acted upon wrong principles or under-looked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
15. In GRIFFIN V REPUBLIC 1981 KLR (2) the Court of Appeal held that an appellate court can only interfere with the exercise of discretion by the trial court when such discretion exercised the sentence imposed is either manifestly harsh or extremely lenient. The appellate court is also enjoined by law to interfere with discretion of the trial court where facts establish that trial courts are insulated from interference by appellate courts save in exercising their discretion in sentencing unless the statute sets a minimum sentence. That exercise of discretion is normally arrived at by a trial court taking into account several principles like; proportionality, equality and uniformity.
16. These principles guide the court in meeting the objectives of sentencing which consist of deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.
17. The above principles and objectives underpin the critical importance of sentencing decision in the criminal justice process. In exercising discretion to impose a sentence on an accused person, trial courts should be guided by above principles and objectives.
In the case of AMBANI VS. REPUBLIC 1990 KLR the court observed as follows:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is thus not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before sentencing for any given sentence.”
In the applicant’s case he was found in possession of handcuffs at 0030 hours. He is not a member of the disciplined forces. He did not explain what it is that he was doing with handcuffs at that hour of night in a bar. Handcuffs are not jewelry. They have a purpose. A restrain purpose upon a person under arrest . They are not toys .
A view of the record shows that the trial court exercised its discretion. S. 36 provides for imprisonment, or fine or both. The court chose one. The court gave reasons for the sentence. It considered the offence though a misdemeanor, to be serious. The convict did not offer any reasons as to why he had in his possession the said hand cuffs. The fact is, if for instance he had given the court his explanations and the court had ignored it, or maybe then he would have had a case. As far as s. 362 goes, the sentence does not appear incorrect, or illegal or inappropriate. I may have meted a different sentence as a trial court, but that is not a good reason to interfere with the exercise of discretion by the trial court.
I have considered all the submissions regarding the Sentencing Policy Guidelines, and it is true that the trial court ought to have been guided accordingly. The policy guidelines are guidelines to assist the court in the exercise of discretion.
I have considered that the applicant was a first offender, but the offence was serious in the spectrum of misdemeanors. The law allows the sentence. It is not one that is up for revision on the parameters set out under s. 362 of the CPC.
The applicant is entitled to remission , of at least a third of his sentence. Most probably he will serve on 12 of the 18 months.
Be that as it may the Application does not have merit and is declined.
Dated signed and delivered virtually this 15th August 2025
Mumbua T Matheka
Judge
CA Chrispol
Applicant at Makueni Main Prison.
The particulars were that on the 9th day of February, 2025 at around 0030 hours in Wote within Makueni County, he had in his possession public stores, namely a pair of handcuffs. BARNABY MODE 3020 serial number 201900 485 and its key the property of disciplined forces, such property being reasonably suspected of having been stolen or unlawfully obtained.
When the charges were read to him the accused person pleaded guilty to both the charge and the facts. In mitigation, he simply stated I plead for leniency. There was no explanation as to how he came to be in possession of the said handcuffs, or what he was doing with them at that hour, in that place.
The learned trial magistrate considered his plea and his mitigation. Took account of the circumstances of the offence considered the same to be serious and sentenced the accused to 18 months imprisonment.
Through a Notice of Motion dated 11th of June 2025 the applicant sought the revision of his sentence under section 362 and 364 of the Criminal Procedure Code.
He sought orders that the sentence of 18 months be substituted with a non-custodial sentence or in the alternative to non-custodial sentence he be given the option of a fine the amount of fine to be determined by the honorable court.
That the offence he was charged with was a misdemeanor and therefore a non-custodial sentence would be the most appropriate sentence. Further that the trail Court ought to have given him an option of fine. That the Guideline 11.5 of the Sentencing Policy Guidelines provides that where the option of a fine is provided, the court must first consider it before proceeding to impose a custodial sentence and if the sentence of a fine is not suitable, then the court should expressly indicate so as it proceeds to impose the available option. That in this case, the trial court did not indicate why it did not consider the option of fine.
In addition, he averred that the sentence meted by the trial court was manifestly excessive in that there were no aggravating factors, justifying the 18 months imprisonment without an option of fine. He referred the court to guideline 23:8 of the Sentencing Guidelines on mitigating factors, the court should have considered that the applicant was a first offender and did not have any intention of committing an offense with the public stores.
That in any event, the sentencing policy guidelines require the court to consider the gravity of the offense, the criminal history of the offender the character of the offender and the protection of the community in deciding whether or not to grant non-custodial sentence.
He added that he had been in prison since 10th February 2025 and in the course of imprisonment the applicant had reformed and was ready for integration back to society. The applicant is married with a child and the wife and the child solely depend on the applicant.
The application was supported by his affidavit sworn on a date not indicated in the document.
The applicant filed submissions arguing the application on several grounds; That the sentence has an option of fine, which should have been given as there were no aggravating factors; that mitigating factors were not considered including his age ;that the applicant was a first offender that the applicant is remorseful and was willing to serve a non-custodial sentence; That the applicant had reformed; that the applicant is the breadwinner with his family and the applicant is a convict of a misdemeanor.
To support his submission, he has cited various authorities which I have considered.
The provisions relied upon by the applicant’s state follows.
362. Power of High Court to call for records
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.
364. Powers of High Court on revision
(1)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—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
Accordingly, the Applicant is asking this court to consider the correctness, legality or propriety of his sentence.
Section 324 (3) of the Penal Code states;
Any person conveying or having in his possession, or keeping in any building or place, whether open or enclosed, any stores being the property of the disciplined forces, which may reasonably be suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, shall be guilty of a misdemeanour.
Section 36 of the same Code provides General punishment for misdemeanours
When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.
The issue for determination is whether the application has any merit. Has the applicant placed any material before this court to bring his sentence into the purview of s, 362 of the CPC?
To begin with Section 364 (5) of the Criminal Procedure Code states
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
Further s, 348 of the same Code states;
348. No appeal on plea of guilty, nor in petty cases
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
The applicant had a right of appeal as to the extent and legality of the sentence , the same thing he has brought for revision. He ought to have filed an appeal against it.
Be that as it may, the parameters for revision are set out at s. 362.
The issue was the sentence.
I find illumination on the issue in Dahir Hussein v Republic [2015] KEHC 636 (KLR) where the Judge was dealing with a similar issue on appeal. He stated:
14. The issue before me is on severity of sentence. What is the applicable law in the case of OGOLA S/O OWUORA VS. REGINA 1954 EACA 290. The appellate court dealt with the issue and sets out the guiding principles to deal with matters of this nature.
The court stated:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial judge unless it is evident that the judge acted upon wrong principles or under-looked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
15. In GRIFFIN V REPUBLIC 1981 KLR (2) the Court of Appeal held that an appellate court can only interfere with the exercise of discretion by the trial court when such discretion exercised the sentence imposed is either manifestly harsh or extremely lenient. The appellate court is also enjoined by law to interfere with discretion of the trial court where facts establish that trial courts are insulated from interference by appellate courts save in exercising their discretion in sentencing unless the statute sets a minimum sentence. That exercise of discretion is normally arrived at by a trial court taking into account several principles like; proportionality, equality and uniformity.
16. These principles guide the court in meeting the objectives of sentencing which consist of deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.
17. The above principles and objectives underpin the critical importance of sentencing decision in the criminal justice process. In exercising discretion to impose a sentence on an accused person, trial courts should be guided by above principles and objectives.
In the case of AMBANI VS. REPUBLIC 1990 KLR the court observed as follows:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is thus not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before sentencing for any given sentence.”
In the applicant’s case he was found in possession of handcuffs at 0030 hours. He is not a member of the disciplined forces. He did not explain what it is that he was doing with handcuffs at that hour of night in a bar. Handcuffs are not jewelry. They have a purpose. A restrain purpose upon a person under arrest . They are not toys .
A view of the record shows that the trial court exercised its discretion. S. 36 provides for imprisonment, or fine or both. The court chose one. The court gave reasons for the sentence. It considered the offence though a misdemeanor, to be serious. The convict did not offer any reasons as to why he had in his possession the said hand cuffs. The fact is, if for instance he had given the court his explanations and the court had ignored it, or maybe then he would have had a case. As far as s. 362 goes, the sentence does not appear incorrect, or illegal or inappropriate. I may have meted a different sentence as a trial court, but that is not a good reason to interfere with the exercise of discretion by the trial court.
I have considered all the submissions regarding the Sentencing Policy Guidelines, and it is true that the trial court ought to have been guided accordingly. The policy guidelines are guidelines to assist the court in the exercise of discretion.
I have considered that the applicant was a first offender, but the offence was serious in the spectrum of misdemeanors. The law allows the sentence. It is not one that is up for revision on the parameters set out under s. 362 of the CPC.
The applicant is entitled to remission , of at least a third of his sentence. Most probably he will serve on 12 of the 18 months.
Be that as it may the Application does not have merit and is declined.
Dated signed and delivered virtually this 15th August 2025
Mumbua T Matheka
Judge
CA Chrispol
Applicant at Makueni Main Prison.