Robert Musau v Republic

matter. Reliance was placed on the case of William Mwangale Ongoma v Republic [2020] KEHC 1446 [KLR] where the learned judge held that: “ …. A court in revision is not concerned with the merits of the decision of the court but rather on the impropriety, mistake, illegality of the order, sentence or judgment…… This court’s powers of revision are limited to satisfying itself as to the correctness, legality or propriety of any findings, sentence, or order recorded or passed and as to the regularity of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under Article 165(6) of the Constitution the court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of the lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice…..” 5. The Respondent submitted that in exercising its supervisory jurisdiction, this Court has no powers to alter a conviction in a decided case in the lower court trial. The court is invited to handle any issue of legality, correctness or propriety of the court's orders. This honourable court has no jurisdiction to act as an appellate court in a case of review, as it is in the Applicant's application. 6. It was submitted that the Applicant pleaded guilty to the charges and was convicted of his own plea of guilty and was sentenced in accordance with the law. That the decision of the trial court was not improper, not a mistake and neither was it illegal. The Respondent urged this court to dismiss the application in its entirety as it lacks merit. Determination 7. I have carefully considered the trial court’s record, the instant application and the submissions by the State. The pertinent issue for determination is whether the Applicant deserves the grant of the orders sought. 8. The Applicant was charged with the offence of stealing stock contrary to Section 278 of the Penal Code. The particulars of the offence were that on the 25th day of June 2025 at around ..... Kaaba Sublocation, Mbiuni Location in Mwala Sub-county within Machakos County, stole two (2) sheep valued at Kshs.12,000/=, the property of Francis Gachihi Guchu. 9. In the alternative, the Applicant was charged with the offence of handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars were that on the 26th day of June 2025 at Kithimani market, Kithimani Location, Yatta Sub-county within Machakos County, otherwise than in the course of stealing, dishonestly retained one white sheep while having reasons to believe that it was a stolen property. 10. The Applicant pleaded guilty to both the main and the alternative charges. He was convicted on his own plea of guilty and upon considering the Applicant’s mitigation the trial court sentenced him to serve seven (7) years imprisonment with a right of 14 days to appeal. The Applicant did not lodge an appeal but opted to file the instant application though erroneously by way of a Petition seeking for his sentence review. 11. Section 278 of the Penal Code under which the Applicant was charged provides:“ If the thing stolen is any of the following things, that is to say; a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, whether, goal or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7157/eng@2026-04-13 2

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12. The penalty under the Act upon conviction is imprisonment for a period not exceeding fourteen years. The Applicant was sentenced to serve seven (7) years imprisonment. The Applicant pleaded guilty and has not challenged the plea of guilty but rather his sentence of 7 years. It is trite law that no appeal or revision lies on a plea of guilty except as to the extent of legality of sentence. 13. The court is empowered by Article 165 (6) of the Constitution of Kenya, 2010 to review the decision of the subordinate court. Article 165 (6) provides that : “ The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over a superior court” 14. Section 362 of the Criminal Procedure Code Cap 75 Laws of Kenya vests in the High Court to revise decisions made by the subordinate courts in the following terms “ The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of any such subordinate court”. 15. The orders which the High Court may make upon revision are provided under Section 364 of the Penal Code which provide as follows:364. (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may – a. in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; b. in the case of any other order other than an order of acquittal, alter or reverse the order. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. (3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. (4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7157/eng@2026-04-13 3

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16. In reviewing a sentence, the High Court will be looking at the legality and correctness of both the proceedings in the subordinate court as well as the sentence imposed. The principles upon which the court may interfere with the sentence imposed by the trial court were laid down in the case of Wanjema v Republic (1971) EA 493 which are that if the court is satisfied that in arriving at the sentence the trial court did not take into account a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the court must not lose sight of the fact that in sentencing, the trial court exercised discretion and as long as the discretion is exercised judicially and not capriciously, the appellate court should be slow to interfere with that discretion. 17. The prosecution told the trial court that the Applicant was a first offender. The Applicant in his mitigation asked for forgiveness and vowed never to repeat the offence. In the instant application, the Applicant has stated that he is the bread winner of his family, has reformed and is deeply remorseful. 18. The trial court in sentencing the Applicant to 7 years imprisonment noted that the offences against the Applicant were serious with severe punishment. 19. It cannot be down played that there were grave consequences to the offences committed by the Applicant. A deterrent sentence was most appropriate in the circumstances of the case and the sentence by the trial court was in accordance with the law. However, considering that the Applicant was a first offender who asked for forgiveness and vowed never to repeat the offence and further the fact that the value of the two stolen sheep was Kshs.12,000/= (I would presume each sheep was worth Kshs.6,000/ =) of which one was recovered and a photo of the same availed before the trial court, the sentence of 7 years imprisonment in my view was harsh in the circumstances. I consider a sentence of three (3) years to be appropriate. 20. The upshot is that the conviction of the trial court is upheld but the sentence of seven (7) years imprisonment is set aside and substituted with one of three (3) years. The sentence of three years is to run from the date of sentencing by the trial court being 3rd July 2023. 21. This miscellaneous file is closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS THIS 13TH APRIL 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 13TH APRIL 2026 In the presence of: The Appellant Ms. Abang-Prosecutor Milly- Court Asst https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7157/eng@2026-04-13 4

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