https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12200

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT LODWAR** **CRIMINAL REVISION NO. E063 OF 2025** **ALEX FRIDAY OHIDI…………..…………….……..……..…..…………....…….……APPLICANT** **VERSUS** **REPUBLIC…………………………………………………………..........….………..RESPONDENT** **RULING** **The Application** 1. Before the Court is an application by the Applicant seeking revision of the custodial sentence imposed upon him following his conviction for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He prays that the remainder of his custodial sentence be substituted with a non-custodial sentence. 2. The record shows that the Applicant was convicted by the Senior Principal Magistrate's Court at Kakuma, in MCCR No. E482 of 2024 and, on 20th May 2025, sentenced to a ten (10) years' imprisonment. The sentence was ordered to run from 4th November 2024, being the date of his first arraignment. 3. Upon considering the current application, the Court directed the Probation Service and the Kenya Prisons Service to prepare reports on the Applicant's suitability for a non-custodial sentence. 4. In compliance with those directions, the Probation Officer's Report dated 31st March 2026 and the Prison Officer's Report dated 5th November 2025 were duly filed. 5. The reports reveal that the Applicant is a twenty-one (21) year-old South Sudanese refugee formerly residing at Kalobeyei Refugee Camp. They depict him as remorseful, disciplined and responsive to rehabilitation. While in custody, he has maintained exemplary conduct, has not been subjected to any disciplinary proceedings, and has accepted responsibility for his actions. The complainant informed the Probation Officer that he had forgiven the Applicant and wished him well. Likewise, the local administration and members of the community expressed their willingness to receive and support him upon his release. Consequently, both the Probation Service and the Kenya Prisons Service recommended that the Applicant be considered for a non-custodial sentence. 6. Mr. Ekal, the Probation Officer, submitted that under the Probation of Offenders Act, the suitability of an offender for a probation order is determined through a social inquiry report. He further submitted that the Community Service Orders Act permits the imposition of a community service order where the unserved custodial term does not exceed three years. **Response to the Application** 1. Mr. Otieno, learned prosecution counsel, opposed the application and submitted that the Applicant is ineligible for a non-custodial sentence because the unserved portion of his sentence exceeds three years. According to counsel, the Probation of Offenders Act only permits the making of a probation order by the trial court while the Community Service Order Act only permits early release on the non-custodial sentence where the sentence yet to be served does not exceed three years. He therefore contended that this Court lacks jurisdiction to entertain the application. **Issues, Analysis and Determination** 1. Having considered the application, the reports on record and the parties' respective positions, the issues falling for determination are: 2. **Whether this Court has jurisdiction to entertain the application.** 3. **If so, whether the Applicant has established a legal basis for substituting the remainder of his custodial sentence with a non-custodial sentence.** **Whether this Court has jurisdiction to entertain the application** 1. The Respondent contends that this Court lacks jurisdiction because the Applicant is serving a sentence whose unserved portion exceeds three years. That contention may not be wholly accurate because the jurisdiction of the Court is derived from Articles 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. Those provisions empower the High Court to call for and examine the record of criminal proceedings before a subordinate court in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of the proceedings. 2. The Respondent's objection is founded on the provisions of the Probation of Offenders Act. However, sections 4 and 5 of that Act do not curtail the revisionary jurisdiction of the High Court. Rather, they regulate the circumstances in which a probation order may be made and prescribe that such an order shall remain in force for a period of not less than six months and not more than three years. 3. Accordingly, the Court is satisfied that the present application properly invokes its revisionary jurisdiction. The objection to jurisdiction is therefore without merit and is dismissed. **Whether the Applicant has established a legal basis for substituting the remainder of his custodial sentence with a non-custodial sentence** 1. Sentencing is not an end in itself but a means of achieving the objectives of the criminal justice system. Paragraph 1.3.1 of the Judiciary Sentencing Policy Guidelines, 2023 identifies those objectives as retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation, reconciliation and reintegration. In every case, the sentence imposed must strike an appropriate balance among those objectives within the confines of the law. 2. But again, sentencing is a matter at the judicial discretion of the trial court and a supervising court, whether on appeal or revision, ought not to interfere with discretion freely and lightly. 3. The Court has considered the Probation Officer's Report and the Prison Officer's Report. Both reports present the Applicant in a favorable light. They demonstrate that he has maintained exemplary discipline while in custody, accepted responsibility for his conduct, expressed genuine remorse and responded positively to rehabilitation programs. They further reveal that the complainant has forgiven him and that both the local administration and the community are willing to facilitate his reintegration. The Court commends the Applicant for these positive developments. 4. That notwithstanding, the Applicant was sentenced to a ten (10) years' imprisonment commencing on 4th November 2024. As at the date of this determination, he has served one year and forty-three days. That is only a relatively small portion of the sentence, leaving a substantial period yet to be served. Although rehabilitation is a significant consideration in sentencing, it cannot, without more, justify interference with an otherwise lawful custodial sentence. Custody and the programs run by the correction facilities also require time to impact on those targeted. 5. More fundamentally, the relief sought is not one that this Court can grant in the exercise of its revisionary jurisdiction. Sections 4 and 5 of the Probation of Offenders Act contemplate the making of a probation order by the sentencing court as an alternative to imprisonment at the time of sentencing. They do not empower the High Court, after a lawful custodial sentence has been imposed and execution has commenced, to substitute the unserved portion of that sentence with a probation order solely on account of the offender's subsequent rehabilitation. 6. 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 considers 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 serving sentences not exceeding three years and that offenders serving longer sentences cannot benefit unless the sentence is first lawfully reduced to three years or less. 7. In the present case, the Court has identified no illegality, impropriety, incorrectness or material irregularity in the proceedings or in the sentence imposed by the trial court that would justify interference in the exercise of its revisionary jurisdiction. The application rests entirely on the Applicant's commendable rehabilitation and the favorable recommendations contained in the probation and prison reports. 8. While the Court readily acknowledges those positive developments, they do not furnish a legal basis upon which a lawful custodial sentence may be converted into a probation order. To grant the orders sought would, in effect, require the Court to exercise a resentencing jurisdiction that is unavailable in revision proceedings. 9. The Court therefore finds that the Applicant has failed to establish any legal basis upon which the remainder of his custodial sentence may be substituted with a non-custodial sentence. 10. In the result, the application is devoid of merit and is hereby dismissed. Dated, signed and delivered at Lodwar this 31st day of July 2026 Patrick J O Otieno Judge