Chief Registrar of The Judiciary v James Musyoki Makau & 8 others

County within Makueni County, the Accused Persons jointly with others not before court took part in unlawful assembly. 2. In Count II, they were charged with the ofience of Obstruction on Public Road Contrary to Section 58 (c) of the Kenya Roads Act No. 2 of 2007. The particulars were that on the same day and at the same place, the Accused Persons with others not before court unlawfully caused obstruction on NairobiMombasa Highway by barricading the road using stones. 3. The Accused Persons pleaded guilty and were accordingly convicted on their own plea of guilty on both counts. After mitigation, the trial court proceeded to record as follows; “ I have considered the Accused mitigation and records. Each of the Accused is sentenced to pay a fine of kshs 30,000/= in default 6 months. Right of Appeal 14 days.” 4. Subsequently, through its ruling dated 20/05/2026, the trial court noted that it had inadvertently failed to specify the sentence applicable to each count separately despite conviction having been entered on both counts. It also noted that Warrants of Commitment had been issued and executions commenced. 5. Consequently, the trial court referred the matter to this court for revision as it had become functus oficio after pronouncing the sentence. The only issue which clearly germinates for determination is; whether the trial court orders should be revised. 6. The jurisdiction and or power to revise orders or proceedings of a surbordinate court is bestowed upon the High Court by dint of Article 165 (6) and (7) of the Constitution. The same is galvanized by Sections 362 and 364 of the Criminal Procedure Code. The scope of this jurisdiction is to ascertain the “correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such subordinate court.” 7. From a perusal of the trial court record, it is evident that there is an apparent error on the face of the record as the trial court did not specify the sentence applicable to each count separately despite conviction having been entered on both counts. 8. Consequently, this court is mandated to correct the error in the interest of justice. This court has basically been called upon to mete out appropriate sentences as the Accused Persons have already been convicted on their own plea of guilt. 9. With regard to Count I, Section 79 of the Penal Code, Cap 63 Laws of Kenya provides; “ Any person who takes part in an unlawful assembly is guilty of a misdemeanor and is liable to imprisonment for one year.” 10. With regard to Count II, Section 58 of the Kenya Roads Act, Cap 408 Laws of Kenya provides; “ Any person who unlawfully— (a) does any act which obstructs or is likely to obstruct the working of any equipment or vehicle belonging to an Authority used in its operations and which act endangers or is likely to endanger the life of any person therein; or (b) damages or in any way interferes with any road or other property of an Authority in such a manner as to endanger the life of any person; or (c) does any act which obstructs or is likely to obstruct the operation of vehicles on any road or the use of any weighbridge, commits an ofience and is liable on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7989/eng@2026-06-05 2

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conviction to imprisonment for a term not exceeding two years, or to a fine not exceeding one hundred thousand shillings, or to both. (Emphasis mine).” 11. It is clear that in both counts, the prescribed term of imprisonment does not exceed 2 years. In determining the most appropriate sentence, the following paragraphs of the Sentencing Policy Guidelines, 2023 are relevant; Paragraph 2.3.6; “The prisons in Kenya are overcrowded with one of the major contributing factors being the over-utilization of custodial sentences. Ofienders serving sentences of less than three years have in most cases been convicted of misdemeanours and so may have been more suitable candidates for non-custodial sentences.” Paragraph 2.3.14; “Imprisonment of petty ofienders should be avoided, as the rehabilitative objective of sentencing is rarely met when ofienders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-ofiending.” 12. In the instant case, the Prosecutor informed the trial court that he had no previous records of the Accused Persons hence the same should be interpreted to mean that they are first time ofienders. The Accused Person’s mitigation shows that they are remorseful and the fact that they pleaded guilty is an additional mitigating factor as it saved precious judicial time. 13. Having looked at the record in totality and the circumstances under which the subject ofiences were committed, I find that the omnibus sentence of Kshs. 30,000/=is on the higher side hence substituted with a fine of 5,000/= in default serve one-month imprisonment in respect of each count. Sentences to run consecutively. The trial court to execute an Amended Committal Warrant to reflect the correct sentence. DATED, SIGNED AND DELIVERED IN CHAMBERS THIS 5TH DAY OF JUNE 2026 ........................ J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7989/eng@2026-06-05 3

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