High Court 14386 of 2025

life but the Magistrate sentenced him to 40 years and he was lucky to have the term of imprisonment reduced by the High Court to 30 years. 6. The applicant has approached this court pursuant to Sections 332(2) of the Criminal Procedure Code as construed with Articles 22(1), 23(1)(3), 25(c), 27, 28, 50(2)(p)(q), 159(2), 160(1) and 165 of the Constitution of Kenya. 6. The Applicant seeks a sentence review based on the period of five (5) months he spent in custody as from 26/02/2010 to 22/07/2010 be computed into the 30 years sentence awarded by the High Court pursuant to the provisions of Section 332(2) of the Criminal Procedure Code. Reliance was placed on the case of Jona & 87 Others vs Kenya Prison Service & 2 Others (Petition 15 of 2020) [2021] KEHC 457 (KLR). The Applicant states that should computation result into a balance of three (3) years or less, then this court should be pleased to grant him probation if his circumstances so fit. 7. The prosecution did not oppose the applicant’s prayer for computation of the time if any, he could have spent in custody pending trial of his case. 8. I have perused the trial court’s judgement, and I note that the trial Magistrate while passing sentence stated as follows:“ I have considered the mitigation by the Accused person. The offence is serious and deterrence called for. Accused is sentenced to serve 40(forty) years imprisonment. Right of Appeal 14 days explained” 9. On the foregoing, it can be observed that the trial Magistrate said nothing in his judgement on the time the Applicant had been in custody during trial which the Applicant indicates to be from 26/02/2010 to 22/07/2010 which is a period of about five (5) months. 10. The Applicant also seeks that pursuant to computation of the period spent in custody pending trial under Section 332(2) of the Criminal Procedure Code, if the same is less than 3 years, the court be pleased to grant him probation sentence if his circumstances so fit. 11. The prosecution opposed this second prayer and submitted that the Applicant had filed a first appeal to the High Court and a second appeal to the Court of Appeal in which conviction was upheld and that in the circumstances this court has no jurisdiction to consider sentence review on a matter that has been determine by the Court of Appeal. 12. The record shows that the Applicant was sentenced on 22/07/2010 to 4o years imprisonment which was reduced to 30 years by the High court on appeal and the Court of Appeal did not disturb the same. If well calculated 30 years from 22/07/2010 to date, the Applicant will have served about 15 years which is half of the sentence imposed. This would be far above the 3 years the Applicant has requested the court to consider in granting him probation. 13. The remaining sentence period to be served by the Applicant is much above 3 years and therefore his circumstances do not fit him being admitted to probation as stated by him. 14. Notwithstanding the above, this court called for a probation report which was filed in court on 07/05/2025. The report is responsive. According to the report, the applicant is a senior citizen aged 67-year-old. The Applicant was found to be a first offender and is reported to be ailing although no proof was shown for the same. He requested for his sentence to be reviewed because of his ailing state. The Applicant’s family expressed a positive attitude towards him, indicating their willingness to receive https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14386/eng@2025-07-15 2

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him back into the household and to provide guidance in rebuilding relationships and resolving past confiicts. 15. The victim was not available for her sentiments to be put on record due to her relocating to unknown location. Efforts made to trace her were unsuccessful. Those who know him in the community, reported that they were ready to receive him back. Prison authority reported that the Applicant had no disciplinary issues while in prison. However, he was not productively engaged due to his illness and advanced age. The report recommended sentence review by placement of the Applicant on two year’s probation but subject to the court’s discretion. 16. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: a. Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour. b. Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence. c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures. c. Protection of the community: - where the offender is likely to pose a threat to the community. d. Offender’s responsibility to third parties: - where there are people depending on the offender. 17. With regard with this case, it appears that there was more emphasis on deterrence than rehabilitation. The Applicant in this case had no previous convictions. The fact that the Applicant is advanced in age and ailing is a factor which is favourable to the Applicant that appropriately releasing him to the homebased rehabilitation would not be prejudicial to society. 18. Further, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service, however this option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works. 19. Having gone through the probation report filed herein, the facts of the present case and particularly the offence for which the Applicant was convicted for and the term of the sentence which is 30 years, I find that the circumstances do not fit the legal framework of the Community Service Act as an alternative sentence to imprisonment in this case. 20. Consequently, I down tools as I lack jurisdiction to reverse a decision of the Court of Appeal which is superior to this court. I recommend that the Applicant through the prison authority does petition the President of the Republic of Kenya through the Advisory Committee on the power of mercy pursuant to the provisions of Sections 19 and 20 of the Power of Mercy Act which stipulates thus :“ Any person may, subject to the Constitution and this Act, petition the President, through the Committee, to exercise the power of mercy and grant any relief specified in Article 133 (1) of the Constitution.” 21. In conclusion, the application by the Applicant herein for review of his sentence is before the wrong forum. The prayer for sentence review cannot be granted as sought save that this court will order that the period the Applicant spent in custody during trial which is the period between 26/02/2010 to 22/07/2010 (five months) be computed in his sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14386/eng@2025-07-15 3

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22. It is hereby so ordered. RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 15TH DAY OF JULY 2025 NOEL ADAGI JUDGE DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 15TH DAY OF JULY 2025 In the presence of In person...............for Applicant Ms.Agatha..............for Respondent Milly.................Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14386/eng@2025-07-15 4

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