Gabriel Lohisa Alias Inyas v Republic

Issues, Analysis, and Determination 7. Having considered the application together with the reports filed by the Probation Service and the Kenya Prisons Service, the Court finds that the following issues arise for determination: a. Whether this Court has jurisdiction to entertain the present application. b. If so, whether the Applicant qualifies for substitution of the remaining term of his custodial sentence with a non-custodial sentence. Whether this Court has jurisdiction to entertain the present application 8. The jurisdiction of this Court to revise proceedings of subordinate courts is anchored in Articles 165(6) and (7) of the Constitution. Article 165(6) vests the High Court with supervisory jurisdiction over subordinate courts, while Article 165(7) empowers it, in the exercise of that jurisdiction, to call for the record of any proceedings before a subordinate court and make such orders or directions as may be necessary to ensure the fair administration of justice. 9. The statutory foundation of that jurisdiction is found in sections 362 and 364 of the Criminal Procedure Code. Section 362 empowers the High Court to call for and examine the record of criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, as well as the regularity of the proceedings. Section 364, in turn, confers upon the Court the powers necessary to revise, alter or reverse orders made by a subordinate court where the circumstances so warrant. 10. It is now well settled that revision is not intended to serve as a substitute for an appeal. Ordinarily and strictly, the jurisdiction is invoked to correct errors of law, illegalities, material irregularities or improprieties apparent on the face of the record. See Joseph Nduvi Mbuvi vs Republic [2019] eKLR. Accordingly, where a sentence is lawful and properly imposed, the High Court will ordinarily decline to interfere merely because an applicant seeks a different outcome. The court entertains no doubt that the sentence imposed by the trial court is not only lenient but equally proportionate to the offence he was convicted for. 11. The present application invites the Court to consider whether the remaining term of the Applicant's custodial sentence should be substituted with a non-custodial sentence. It essentially seeks leniency rather that a right to challenge the sentence imposed. That leniency must of course be exercised upon a statutory pedestal or established principle established by law. Having considered the nature of the relief sought and the constitutional and statutory provisions governing the court’s revisionary jurisdiction, the Court is not satisfied that the application is properly before it and that it has jurisdiction to determine it. 12. Away from revision as aforesaid, the court also has a leeway to consider converting short sentences, not more than three years under section 3(1) of the Community Service Order Act, into non-custodial terms, essentially to reward good conduct in prison, consider the unique circumstances of individual inmate with the overall goal to decongest prison facilities. 13. Whether or not the applicant is eligible for leniency will thus depend on whether he fits the window for consideration under prison decongestion initiative. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12003/eng@2026-07-31 2

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Whether the Applicant qualiffes for substitution of the remaining term of his custodial sentence with a non-custodial sentence 14. The Applicant urges the Court to substitute the remainder of his custodial sentence with a noncustodial sentence on account of his remorse and the favorable recommendations contained in the reports filed by the Kenya Prisons Service and the Probation Service. 15. The Applicant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to serve a 15 years jail term. His eligibility for a noncustodial sentence must therefore be determined within the framework of the statutes governing such sentencing options. 16. The Probation of Offenders Act empowers the trial court, in appropriate circumstances, to release an offender on probation after conviction instead of imposing a custodial sentence. Section 4(1) of the Act provides that where a court convicts an offender and, having regard to the offender's age, character, antecedents, home surroundings, health or mental condition, the nature of the offence or any extenuating circumstances, considers it expedient to do so, it may make a probation order in lieu of a custodial sentence. 17. A plain reading of section 4 demonstrates that the discretion to place an offender on probation is intended to be exercised by the sentencing court at the time of conviction and before sentence is imposed. The considerations enumerated under the provision are matters that inform the sentencing process itself. The Applicant has already undergone that process. He was convicted, sentenced and is presently serving a lawful custodial sentence. 18. The Court has also considered the Community Service Orders Act, which establishes the statutory framework governing community service as a non-custodial sentencing option. Section 3(1) empowers a court to make a Community Service Order where an offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or where the court determines that a custodial sentence of three years or less is appropriate. In Kilonzo & 3 Others v Commissioner General of Prisons & 3 Others [2022] KEHC 13391 (KLR), the Court held that eligibility for a Community Service Order under section 3(1) is confined to offenders whose sentence does not exceed three years and that offenders serving longer sentences cannot benefit unless the sentence is first lawfully reduced to three years or less. 19. Likewise, in Gilbert Mwangi Kiai v Republic [2017] eKLR, the Court observed that a Community Service Order is not intended to provide an easy escape from a custodial sentence. Rather, it is a serious sentencing option designed to facilitate rehabilitation while ensuring that offenders remain accountable to the communities affected by their conduct. 20. More significantly, Parliament expressly excluded certain categories of offenders from eligibility for Community Service Orders. Section 3(10)(b) of the Community Service Orders Act provides that section 3(1) does not apply to persons convicted under the Sexual Offences Act. 21. The Applicant therefore falls squarely within the category of offenders expressly excluded from the statutory community service regime. 22. The exclusion enacted by Parliament is deliberate and unequivocal. The Court cannot disregard an express statutory prohibition in favour of other considerations, however compelling they may appear. Judicial discretion must always be exercised within the confines of the law and cannot be invoked to circumvent clear legislative intent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12003/eng@2026-07-31 3

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23. The Court has attached due weight to the reports filed by the Officer in Charge of Lodwar Main Prison and the Probation Officer. Those favorable reports, however, do not, by themselves, confer eligibility for a non-custodial sentence. Their purpose is to assist the Court in determining whether an offender who is otherwise eligible should benefit from such a sentence. They cannot enlarge the Court's jurisdiction or override statutory provisions that expressly render a particular class of offenders’ ineligible. 24. While rehabilitation is undoubtedly a central objective of sentencing, it is not the only one. Sentencing must also uphold the rule of law by giving effect to legislative policy. Where Parliament has expressly excluded offenders convicted under the Sexual Offences Act from benefiting from a statutory noncustodial sentencing regime, the Court is duty-bound to give effect to that legislative choice. The Applicant therefore remains ineligible for the non-custodial sentence sought, notwithstanding the favorable reports filed by the Kenya Prisons Service and the Probation Service. 25. However, the court records show that the applicant was arrested on the 21.12.2024 and remained in remand custody throughout the trial period. On that account it is ordered that his sentence shall be computed to start running from the date of arrest. 26. Accordingly, the application lacks merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT LODWAR THIS 31ST DAY OF JULY 2026 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12003/eng@2026-07-31 4

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