REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL REVISION NO. E 109 OF 2025 BENSON WACHIRA MUTHIGA Alias DAVID MBUGUA BABU----------------------------------------------------------------------------------------APPLICANT -VERSUSREPUBLIC----------------------------------------------------------RESPONDENT RULING 1. The Applicant by way of an undated Notice of Motion filed in court on 15/7/2025 moved this court under the provisions of Article 50 (25) (a) and 165 (6) of the Constitution of Kenya 2010 as read together with Section 362, 364 of the Criminal Procedure Code. 2. The applicant’s prayer was that he be considered for substitution of the remainder of the sentence with an order for probation. 3. The applicant was convicted for the offence of Stealing Contrary to Section 268 as read with 275 of the Penal Code. 4. He was sentenced to serve two (2) years imprisonment on 9 th December 2024. 5. The Applicant has substantially served his sentence and is now left with one month and a few days to complete his term. 6. This court has reviewed the lower court record and considered the plea by the applicant to be placed on probation. 7. It is the considered view of this court that considering the gravity of the offence within which he was charged, and the period already spent in NAIROBI HC CR REVISION E 109 OF 2025 – Benson Wachira Muthiga alias David Mbugua Babu –vs- Republic 1
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prison, it would not serve the interests of justice to keep him any longer in prison or even by placing him under probation. 8. The court is alive to the prison congestion problem and considering that the applicant is about to complete sentence, tampering justice with mercy, this court interferes with the sentience of two years imprisonment and in substitution therefore reduces the sentence to the period already served. 9. Although one of the objectives of sentencing is to punish, rehabilitation must also be borne in mind. 10. The court remains hopeful that the applicant has over the period he has been in prison custody reflected on his life and conduct going into the future. He must, by now, be acutely aware that crime does not pay. 11. Accordingly, having reduced the sentence of 2 years to the period already served, the applicant shall immediately be released from prison unless he is otherwise lawfully held. 12. It would not make any economic sense to expend more state resources on him by placing him on probation. 13. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 23rd day of FEBRUARY, 2026. A. M. MUTETI JUDGE NAIROBI HC CR REVISION E 109 OF 2025 – Benson Wachira Muthiga alias David Mbugua Babu –vs- Republic 2
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In the presence of: Habiba: Court Assistant Applicant in person Mogere for the State NAIROBI HC CR REVISION E 109 OF 2025 – Benson Wachira Muthiga alias David Mbugua Babu –vs- Republic 3
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