https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10847

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **MISC. CRIMINAL APPLICATION NO. E015 OF 2026** **(Arising from Kakamega CM Criminal Case No. E720 of 2026)** **ABDALLAH CHIBOLE WAWIRE……………………………..……………….APPLICANT** **VERSUS** **REPUBLIC…………………………………….……………………………….RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant, Abdallah Chibole Wawire, moved this Court by a Notice of Motion seeking revision of the sentence imposed upon him by the trial court in Kakamega CM Criminal Case No. E720 of 2026. The application is supported by the grounds set out in the Motion and the Supporting Affidavit sworn by the Applicant. 2. The Applicant states that he was convicted on his own plea of guilty for the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code and was sentenced to serve seven (7) years’ imprisonment. He contends that he was a lay person who did not fully appreciate the legal consequences of his plea, that he is a first offender, is genuinely remorseful, and was a student at Shianda Polytechnic before his incarceration. 3. The Applicant further states that he is seventeen (17) years old. The Office of the Director of Public Prosecutions confirmed before this Court that the Registrar of Births authenticated the Applicant’s birth certificate and confirmed that he was indeed seventeen (17) years old at the time of conviction and sentence. It was also confirmed that he is currently held at Kakamega GK Prison. **ISSUE FOR DETERMINATION** 1. The issue for determination is whether this Court should exercise its revisionary jurisdiction over the sentence imposed by the trial court. **ANALYSIS AND DETERMINATION** 1. Unde Section 362 of the Criminal Procedure Code,this court may call for and examine the record of any 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. 2. The court’s powers under section 364 of the criminal procedure code include altering or revising an illegal or improper sentence. 3. In **Bernard Kimani Gacheru V Republic (2002)Eklr**, the court of appeal held that sentencing is a matter within the discretion of the trial court, but an appellate or revisional court may interfere where the sentence is illegal, founded on wrong principles, relevant factors were ignored , irrelevant factors were considered or the sentence is manifestly excessive. 4. The record shows that the Applicant was below the age of eighteen years at the time of conviction and sentence. Articles 53(2) and 159 of the Constitution, the best interests of the child are of paramount importance in every matter concerning a child. Further, the Children Act requires courts dealing with child offenders to prioritize rehabilitation and reintegration into society and to resort to detention only where appropriate and in accordance with the law. 5. The Supreme Court in **Francis Karioko Muruatetu & Another Versus Republic (2017)eKLRr** emphasized that sentencing is an individualized judicial exercise requiring courts to consider the personal circumstances of each offender before imposing sentence. 6. Although the offence under Preparation to commit a felony section 308(1) of the Penal Code is undoubtedly serious, the sentencing court was under a duty to consider the Applicant’s status as a child and to apply the legal principles governing the sentencing of children. The sentence of seven (7) years’ imprisonment in an adult prison does not demonstrate adequate consideration of those constitutional and statutory safeguards. 7. The Court has also taken into account that the Applicant pleaded guilty at the earliest opportunity, is a first offender, expressed remorse, and was pursuing his education prior to his arrest. These are significant mitigating factors which ought to have informed the sentence. 8. In the circumstances, this Court is satisfied that the sentence imposed calls for revision in the interests of justice. 9. Accordingly, the Court makes the following orders: 10. The application for revision is hereby allowed. 11. The sentence of seven (7) years’ imprisonment imposed upon the Applicant in Kakamega CM Criminal Case No. E720 of 2026 is hereby set aside. 12. The Applicant is hereby placed under a Probation Supervision Order for a period of Three (3)years under the supervision of the County Probation Officer, Kakamega. 13. The Applicant shall resume his education at Shianda Polytechnic or any other educational institution approved by the Probation Officer and shall comply with all conditions of the probation order. 14. The Officer in Charge of Kakamega GK Prison shall release the Applicant to probation officer forthwith unless otherwise lawfully held. 15. Right of Appeal 14 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Ms. Emily for ODPP present online.