Brian Murimi Njagi v Republic

he was charged and convicted with defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act, and that he was sentenced to 7 years imprisonment. His appeal in the High Court in HCCRA No. E063/2022 was dismissed in its entirety. 3. Prior to this application and pursuant to the application in Misc CR Application No.E057 of 2025, this court considered section 333(2) of the Criminal Procedure Code and reduced the applicant’s sentence by 14 days after taking into account the time he had spent in custody pending trial. He urged the court to allow the present application because, he said, he has since reformed and has enhanced his skills while in prison through trainings. He produced some of the certificates from the trainings he has attended. He pointed out that the remaining unserved sentence amounted to only one (1) year and five (5) months. As such, he seeks that the Court do grant him a non-custodial sentence pursuant to Section 4 of the Probation of Offenders Act. 4. The state opposes the application on the ground that only, the court that tried and sentenced the applicant could lawfully invoke Section 4 (1) and (2) of the Probation of Offenders Act. Parties’ Submissions 5. The application was canvassed by way of written submissions. 6. In his submissions, the applicant relied on section 4(1) and (2) of the Probation of Offenders Act which provides for conditional release of offenders under the circumstances defined therein. He urged the court to consider the circumstances of the case like, age of the offender and his character. He submitted that after he was incarcerated; his wife left him, leaving their child without a parent and in the care of his brother, who also died through a road accident. That the child’s grandparents are not well to do and they are struggling to put the child through school. He is now seeking the reliefs prayed so that he can be released take care of his child. 7. The respondent submitted that for Section 4 of the Probation of Offenders Act to apply, certain factors must be considered. These include: offender’s age or background, home environment, health or mental condition, seriousness of the offence, mitigation or other special circumstances. The High Court may make an order under this provision after conviction. Based on this, the respondent argued that this provision can only be invoked before the High Court if it was the court that tried the matter. That the prayers should have been sought before the court that tried the matter. It argued that this court lacks jurisdiction to entertain the application. Issue for Determination 8. The issue for determination is whether the application has merit. Analysis and Determination 9. Section 4 (1) and 4(2) of the Probation of Offenders Act, invoked by the applicant, provides for the power of a court to permit conditional release of offenders as follows: “4 (1) Where a person is charged with an offence which is triable by a subordinate court and the court thinks that the charge is proved but is of the opinion that, having regard to youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may(a) convict the offender and make a probation order; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/333/eng@2026-01-21 2

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(b) 4 (2) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognisance, with or without sureties, in such sum as the court may deem fit. Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the youth, character, antecedents, home surroundings. health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which, the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.” 10. It is clear from these provisions that a probation order may be made before or after conviction, but before sentencing in or by the court that is trying the case. Section 4(1) applies to the subordinate court where it is the trial Court; and Section 4(2) applies to the High Court where it is the trial court. 11. In the present case, it is not in issue that the Court that tried and sentenced the applicant is the subordinate court. Section 4(1) would have been applicable in the Subordinate Court if that Court was satisfied that the charge was proved but was of the opinion that, given the parameters therein, and with or without meting sentence, it was expedient to release the offender on probation. 12. In the present circumstances, the subordinate court did in fact convict and sentence the applicant to 7 years imprisonment. That Court did not apply section 4 (1) of the Probation of Offenders Act. The High Court cannot now invoke Section 4(1) to interfere with the trial Court’s decision. Neither can the High Court invoke Section 4 (2) as it is not itself the trial Court. Conclusion and Disposition 13. In light of the foregoing, the High Court hereby determines conclusively that it has no power to invoke either Section 4(1) or 4(2) of the Probation of Offenders Act where, as in this case, the trial court tried, convicted, and sentenced the applicant. 14. The application herein is therefore disallowed in its entirety and is dismissed. 15. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 21ST DAY OF JANUARY, 2026. R. MWONGO JUDGE Delivered in the presence of: Applicant present in Open Court No Representation for ODPP Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/333/eng@2026-01-21 3

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