Maina v Republic (Criminal Revision E066 of 2025) [2026] KEHC 352 (KLR) (22 January 2026) (Ruling) Neutral citation: [2026] KEHC 352 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAKURU CRIMINAL REVISION E066 OF 2025 JM NANG'EA, J JANUARY 22, 2026 BETWEEN DAVID MAINA ......................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant brings this Application by letter dated 14th May 2025 pursuant to the provisions of Sections 362, 364 and 365 of the Criminal Procedure Code seeking revision of sentence imposed against him in the lower court. He urges the court to call for the lower court’s record to satisfy itself as to legality, correctness or propriety of sentence meted out against him. 2. The Applicant and another were charged in the Chief Magistrate’s Court at Nakuru (Criminal Case No. E880 of 2025) with the offence of Entering a protected area without a permit or any other lawful exemption contrary to Section 102(1) (a) as read with Section 102(1) (h) of the Wildlife Conservation and Management Cap 376 Laws of Kenya (Count 1) and undertaking extractive activity in a wildlife protected area without a permit contrary to the same law (Count 2) . They pleaded guilty, got convicted and sentenced to a fine of Kshs. 200,000/= (two hundred thousand) each or serve 2 years imprisonment. The Applicant complains that the sentence is too harsh in the circumstances as to call for its revision in the exercise of this court’s supervisory power over subordinate courts. 3. The Applicant expresses remorse and urges the court to consider that he is a first offender and had cooperated with the investigators. He complains that the sentence meted out against him is excessive. 4. The Prosecution Counsel opposes the Application vide written submissions dated 27th November 2025 which I have perused. 5. I have considered the Application and perused the trial court’s record. Indeed, the Applicant and another were so charged, convicted and sentenced before the lower court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/352/eng@2026-01-22 1
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6. Sections 362, 364 and 365 of the Criminal Procedure Code empower this court to call for a subordinate court’s record with a view to satisfying itself as to the legality, correctness or propriety of an order or decision made by the court, and issue appropriate orders or directions. 7. The Applicant herein do not in substance appear to be contending that the sentence meted out against them is illegal. Rather, he wants variation thereof considering the mitigation statements put forth. 8. The Supreme Court in the case of Francis Muruatetu & Others v Republic has outlawed the mandatory nature of the death sentence in cases of murder brought under section 203 as read section 204 of the Penal Code. The apex court introduced the exercise of discretion in sentencing offenders in such cases guided by peculiar facts and circumstances attending each case. The Court proceeded to allow for resentencing of convicts on death row for murder in line with the principles set out in the landmark case. 9. Other superior courts subsequently applied the same principle in other cases including Kathewa Laichena v Republic (2018) eKLR and William Okungu Kittiny v Republic (2018) eKLR to outlaw mandatory or minimum sentences provided for by some laws including the Penal Code and the Sexual Offences Act. 10. The Supreme Court has, however, clarified in its latest decision on this controversy to wit; Joshua Gichuki Mwangi & Others in Petition No. E018 of 2023 that any challenge to the constitutional validity of mandatory sentences for other capital offences other than murder, or other minimum sentences that take away the court’s discretionary power to decide an appropriate sentence for an offence, is welcome for determination by the High Court, and also the Court of Appeal where the High Court agrees with the Petitioner(s). This challenge is, however, to be mounted in a proper substantive Constitutional Petition and not vide a Miscellaneous Criminal Application such as brought by the Applicants herein. Because of the importance of such a Petition, proper Respondents would include the Director of Public Prosecutions, the Attorney General and other appropriate Interested Parties as may be identified. 11. This court will not therefore treat this Application as the Petition contemplated by the Supreme Court in Joshua Gichuki Mwangi supra. Moreover, if the Applicants think that the sentence imposed by the trial court is excessive or severe in the obtaining circumstances, the proper remedy would be an Appeal and not revision of the lower court’s order as craved in this Application. The Applicant could also wait for the regular Judiciary’s Prison Decongestion Programme and try his luck. As it is, the sentence complained of is not illegal or otherwise improper. The sentence is within the legal limit prescribed by law. 12. In the premises, this Application is dismissed. J. M. NANG’EA, JUDGE. RULING DATED, SIGNED AND DELIVERED AT NAKURU THIS 22ND JANUARY, 2026. In the presence of: Mr Wakasyaka for the DPP. Applicant. The Court Assistant (Jeniffer). J. M. NANG’EA, JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/352/eng@2026-01-22 2
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