John Kinuthia v Republic

6. 7. What the Petitioner is seeking basically that this Court invokes and exercises its powers of Revision and review a sentence imposed by the subordinate Court, a power donated to this Court by Article 165(6) and (7) of the Constitution. The same provide as follows: “ 6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” Section 362 of the Criminal Procedure Code, then provides as follows: “ Revision 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.” 8. The operative phrase in considering Applications for revision is therefore “correctness, legality or propriety” of any finding, sentence or order made by the lower Court. 9. The revisionary jurisdiction of the High Court was examined by Odunga J (as he then was) in the case of Joseph Nduvi Mbuvi vs Republic [2019] eKLR as follows: “ In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.” 10. The operative phrase used by Odunga J above is therefore “to correct manifest irregularities or illegalities”. 11. On his part, Nyakundi J, in Prosecutor vs Stephen Lesinko [2018] eKLR outlined the principles that should guide a Court in exercising its reversionary jurisdiction as; (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of the law; (c) where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; (d) where the material evidence on the parties is not considered; and (e) Where the judicial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13863/eng@2025-08-01 2

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discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence. 12. In this case, the sentence imposed was as a result of the Petitioner’s conviction after his own plea of guilty. Having come under the Revisionary jurisdiction of this Court, the Petitioner is required to demonstrate that that there was something unlawful or irregular about the “correctness, legality or propriety” of the sentence imposed. In this case, he claims that the sentence as harsh. 13. The maximum punishment prescribed for the offence of breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code, which is what the Petitioner was convicted for, is 7 years imprisonment. 14. In respect to a higher Court interfering with a sentence meted out by a subordinate Court, the Court of Appeal, in the case of Ogalo s/o Owuora v Republic [1954] 21 EACA 270, guided as follows: “ … The court does not alter a sentence on the mere ground than if the member 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 a trial judge unless as was said in James v Republic [1950] 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.” 15. Similarly, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal stated that: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. 16. Still on the issue of sentence, the Supreme Court, in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, guided that, in re-sentencing by the High Court, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and (h) any other factor that the Court considers relevant. 17. Similarly, in the case of Daniel Kipkosgei Letting Vs. Republic[2021] eKLR, the Court of Appeal stated as follows: “ …………. we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13863/eng@2025-08-01 3

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18. The sentence meted out on an offender must therefore be commensurate to the blameworthiness of the offender and thus, before settling on a sentence, the trial Court must consider the facts and the circumstances of the case in its entirety. 19. Applying the above principles to the facts of this case, I have looked at the record and noted that the Petitioner was given the opportunity to mitigate, which he did. The Prosecution also informed the trial Court that the Petitioner was a 1st offender. The offence is also categorized as a felony. The particulars of the charge for which the Petitioner was charged were that he broke and entered a building workshop and stole assorted spare parts valued at Kshs 152,000/-. This was therefore a serious charge. 20. I however also note that the Petitioner readily pleaded guilty to the charge and thus saved the trial Court precious time it would have spent in a long trial. The Prosecution was also saved from spending resources it would have incurred in having to availing witnesses. The Petitioner is also relatively of young age, and still in his prime. The stolen items also seem to have been recovered. I find these to be mitigating factors which the trial Magistrate may not have taken into account. 21. Although the offence he was convicted of merits a stiff custodial sentence, I believe that retribution will be best achieved, not by incarcerating him for an unreasonably long period of time, but by giving him a chance to come out of jail after some reasonable period of time and give him a chance to be of benefit to the society. For this reason, I invoke this Court’s supervisory powers of revision and review the sentence. Final Orders 22. The upshot of my findings above is that I rule and direct as follows: i. Noting that the Petitioner has so far served about 2 years in prison, I commute the sentence to such prison term already served, and order for release of the Petitioner from prison, save that he will, upon release, serve another 6 months under the Community Service Programme by performing unpaid work at a public institution to be determined by the Officer-in Charge of the Community Service Programme in Uasin Gishu County. ii. Consequently, the Office of the Director of Public Prosecutions, Uasin Gishu County, is hereby directed, before the Petitioner is released, to liaise with the Prison authorities and the Probation Department on the manner and logistics of handing over the Petitioner to the Probation Department for purposes of implementation of the Community Service order made hereinabove. DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 1ST DAY OF AUGUST 2025 ……………..…….. WANANDA J. R. ANURO JUDGE Delivered in the presence of: The Petitioner Ms. Muriithi for the State C/A: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13863/eng@2025-08-01 4

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