Kelly v Republic (Criminal Miscellaneous Application E012 of 2025) [2025] KEHC 18991 (KLR) (22 December 2025) (Ruling) Neutral citation: [2025] KEHC 18991 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL MISCELLANEOUS APPLICATION E012 OF 2025 TM MATHEKA, J DECEMBER 22, 2025 BETWEEN DAVID MUTUA KELLY .......................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Before me is the undated notice of motion brought under Article 50 (2) (q) and Article 165(6) of the Constitution section 8 (2) of the Sexual Offences Act. It seeks:- 2. 1. That, the honourable court be pleased to revise the remaining sentence in line with section 8(2) of the CSO Act. 2. That, the applicant be exempted from paying court fees as he is a pauper. It is based on:1. That the applicant was charged before the RM at Makindu with the offence of possession of wildlife trophy c/s 95 arw section 105 of the Wildlife conservation and management Act 2013 in Criminal Case No.524 of 2018 and sentenced to serve a custodial term of seven (7) years. 2. That the applicant is a first-time offender 3. That the applicant was the breadwinner to his young family 4. That the applicant is remorseful and regrets his actions. 5. That the applicant isn't contesting the conviction and sentence but rather pleading for leniency in the line with section8 (2) of the CSO ACT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18991/eng@2025-12-22 1
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3. 6. That the applicant has undertaken several rehabilitative programs. 7. That the applicant is left with 20 months to serve as at time of filing this application. The applicant has filed a supporting affidavit where he depones 1. That, the applicant is an inmate at Machakos Main G.K. Prison serving a Seven (7) years custodial sentence for the offence of possession of wildlife trophy 2. That, I am a first offender 3. That, I am remorseful and deeply regret my actions now having learnt that crime doesn't pay. 4. That, I have no intention whatsoever to file an appeal. 5. That, I am remaining with 20 months left to serve as at time of filing this application. 6. That, I now approach this Honourable Court seeking for a non-custodial sentence based on mitigating factors highlighted in the Notice of Motion 7. That it is in the Interest of Justice that the prayers sought be granted as humbly prayed. 4. The lower court file Makindu MCCR 524/2018 has been missing leading to several summons to the court Administrator to appear and provide an explanation. 5. What has been brought is a “2nd Skeleton file” which does not bear;The charge sheetThe committal warrantJudgment This forced the court to direct the prison authorities to see what documents could be availed to court from their records / the applicant’s possession. 6. It is noteworthy that the PAS Officer in POR Ref No. PS/3/3/Vol. 4/33 dated 3/6/2025 (6 pages) could do a complete report without reference to the Lower Court File and still proceed to make recommendations from perusing “the court file MCCR A No. E012/2025 for the appellant. 7. Evidently the officer has not schooled themselves on the nomenclature users by court despite being a Court Officer. DELIVERED, SIGNED AND DATED THIS 22ND DAY OF DECEMBER, 2025 …………………………………………………………… HON. MUMBUA T. MATHEKA JUDGE Court Assistant – Chrispol Prosecutor - Kazungu Accused Counsel for the Accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18991/eng@2025-12-22 2
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