Kaburu v Republic (Criminal Miscellaneous Application E052 of 2025) [2025] KEHC 13227 (KLR) (24 September 2025) (Ruling) Neutral citation: [2025] KEHC 13227 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT CHUKA CRIMINAL MISCELLANEOUS APPLICATION E052 OF 2025 RL KORIR, J SEPTEMBER 24, 2025 BETWEEN BOSCO MAWIRA KABURU .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant Bosco Mawira Kaburu was charged and convicted of the offence of stealing contrary to section 268 as read with section 275 of the Penal Code. He was accused of having stolen a TV set valued at Kshs.60,000 the property of William Njeru Mbiuki. The offence occurred on 22nd January 2025. 2. The Applicant pleaded guilty to the charge before Hon. D.A Ocharo (SPM) on 3rd February, 2025 and was convicted and sentenced to serve 12 months’ imprisonment. 3. The Applicant filed the present Application dated 23rd May, 2025 for review. He sought orders to the effect that the court may exercise judicial authority and consider his mitigation and review his sentence accordingly. 4. The Application listed numerous grounds which amount to mitigation. He stated that he had already served 4 months of his sentence and regretted the offence the he would no indulge in any criminal activities again. That he wished to be sentenced to a fine instead of imprisonment so as to go home and take care of his family. 5. The Applicant swore a supporting Affidavit whose averments mirror the grounds already set out above. 6. The Application was canvassed through oral submissions. 7. At the hearing of the Application on 29th July, 2025, the Applicant submitted that he is now reformed and prayed to be released or be fined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13227/eng@2025-09-24 1
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8. Learned Prosecution Counsel submitted that the Applicant had been convicted and sentenced to one year imprisonment. That section 275 of the Penal Code provides a sentence of not more than 3 years and the sentence of one year was therefore within the law. 9. Counsel further submitted that the Applicant’s case was the subject of Criminal Revision No.E024 of 2025 which the court rejected and ordered that the convict complete his sentence. That the prayer had therefore been exhausted. Analysis and determination 10. This court’s revisionary power is provided under Section Sections 362-364 of the Criminal Procedure Code. “ 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. 363. (1) A subordinate court of the first class may call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established within its local limits of jurisdiction, for the purpose of satisfying itself as to the legality, correctness or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings. (2) If a subordinate court acting under subsection (1) considers that a finding, sentence or order of the court of lower class is illegal or improper, or that the proceedings were irregular, it shall forward the record with its remarks thereon to the High Court. (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 - 364. (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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13227/eng@2025-09-24 2
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(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. (3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. (4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5) 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.” 11. In this case, I called for and reviewed the trial file. The record shows that the Applicant was convicted on his own guilty plea by Hon. D.A Ocharo (SPM) on 3rd February 2025. The Applicant then stated in his mitigation that he prayed for leniency stating that he had a sick child. 12. The court after hearing his mitigation sentenced him to one year imprisonment. 13. On the 27th May, 2025 the Applicant’s case was listed for revision pursuant to the then on-going decongestion of prison. This court after considering the Probation Officer’s report, found the convict not suitable for a non-custodial sentence and ordered that he completes his sentence. That order has neither been reviewed nor set aside. 14. I have however reconsidered the circumstances of the case, and still found no new circumstances to warrant a review or the setting aside of my orders of 27th May, 2025. 15. In the end, I find no merit in the Application. It is dismissed. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 24TH DAY OF SEPTEMBER, 2025. .......................... R. LAGAT-KORIR JUDGE Ruling delivered in the presence of the Applicant acting in person and Ms Rukunga for the State; Moses (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13227/eng@2025-09-24 3
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