MKM v Republic (Criminal Revision E482 of 2025) [2026] KEHC 2540 (KLR) (25 February 2026) (Ruling) Neutral citation: [2026] KEHC 2540 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CRIMINAL REVISION E482 OF 2025 WM KAGENDO., J FEBRUARY 25, 2026 BETWEEN MKM .......................................................................................................... APPLICANT AND THE REPUBLIC ................................................................................... RESPONDENT RULING 1. The Applicant was charged with and convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act and was sentenced to serve ten (10) years’ imprisonment. 2. The Applicant’s circumstances were brought to the attention of this Court during a routine supervisory visit to the correctional facility. The Court directed that he be physically presented before it. Upon seeing him, the Court observed that he was in a grave and deteriorating medical condition requiring urgent and sustained medical attention. Consequently, a sentence review report was filed by the Probation Officer, Ms. Lydia Ngigi, given the seriousness of the offence and the need for a structured reassessment. Legal Framework 3. Section 4 of the Probation of Offenders Act grants this Court the discretion to release a convicted person on probation where, having regard to the offender’s age, character, antecedents, home surroundings, health or mental condition, the nature of the offence, or any extenuating circumstances, it is expedient to do so in lieu of custodial punishment. 4. Further, in Kimutai vs Republic (2024) KEHC 6871 (KLR) Kimutai vs Republic, the Court outlined guiding principles in determining whether to impose a custodial or non-custodial sentence, including:The gravity of the offence;The offender’s criminal history;The character and demonstrated remorse of the offender;The need to protect the community;The offender’s responsibility to dependants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2540/eng@2026-02-25 1
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5. Additionally, in Republic vs Felix Madalitso Keke Confirmation Appeal No. 404 of 2010 (unreported) Republic vs Felix Madalitso Keke, the Court emphasized that public interest in sentencing extends beyond deterrence and includes ensuring that punishment is not cruel, degrading, or inhuman. 6. Sentences must align with justice, restoration, reformation, and rehabilitation. Analysis 7. From the sentence review report, the prisoner’s progressive report, and treatment notes from Coast General Hospital on record, the Applicant is an 80-year-old man suffering from severe and progressive medical conditions. 8. He has lived with a physical disability resulting from poliomyelitis since birth. Prior to incarceration, he was ambulatory only with the assistance of a walking stick and maintained a permanently bent posture. His condition has since significantly deteriorated. He is now unable to walk independently and requires full physical assistance for movement, often being carried by fellow inmates. He also experiences difficulty in speech attributable to advanced age and illness. 9. The Court takes judicial notice that incarceration must not strip a person of their inherent human dignity. Article 28 of the Constitution of Kenya guarantees that every person has inherent dignity and the right to have that dignity respected and protected. This right does not diminish upon conviction. Even a lawfully imprisoned person remains a bearer of constitutional rights, save only to the extent lawfully limited. 10. The continued incarceration of the Applicant in his present condition raises serious concerns regarding the preservation of that constitutional right. The evidence on record demonstrates that his confinement has become physically, mentally, and psychologically burdensome not only to him but also to those tasked with his care within the correctional facility. 11. Importantly, the Court finds that due to his advanced age, extreme frailty, and severe disability, the Applicant no longer poses a threat to society. The objectives of sentencing deterrence, retribution, rehabilitation, and protection of the public—must be balanced against the constitutional imperative to uphold human dignity. 12. To continue holding the Applicant in custody, in circumstances where he is wholly dependent on others for basic mobility and survival, risks rendering the sentence disproportionately harsh and potentially degrading. The justice system must not, in the pursuit of punishment, descend into inhumanity. 13. Punishment must fit not only the crime but also the offender’s present circumstances. Justice must remain humane. Determination Having considered: The seriousness of the offence; The Applicant’s age and deteriorating medical condition; His demonstrated remorse; The probation report; The absence of risk to the community; and The constitutional imperative to safeguard the right to dignity; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2540/eng@2026-02-25 2
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14. I am satisfied that this is an appropriate case for review of sentence. 15. Accordingly, the sentence of ten (10) years’ imprisonment is hereby reviewed to the period already served and he is placed on probation for a period of 3 years to enable safe re integration and supervision. 16. Owing to the old age and ill health, the supervision shall be through the area chief or as agreed with the probation officer. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF FEBRUARY, 2026. Ruling delivered through Microsoft Teams Online Platform. WENDY KAGENDO MICHENI JUDGE SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2540/eng@2026-02-25 3
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