https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6997

Mbae v Republic (Miscellaneous Criminal Application E029 of 2025) [2026] KEHC 6997 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 6997 (KLR) Republic of Kenya In the High Court at Chuka Miscellaneous Criminal Application E029 of 2025 RL Korir, J May 22, 2026 Between Alex Mwiti Mbae Applicant and Republic Respondent Ruling 1.Alex Mwiti Mbae (Applicant) the 2nd Accused in Criminal Case No. E035 of 2023 where together with one Peason Murimi Mburia (1st Accused) were charged with the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act. They were convicted and sentenced to seven years’ imprisonment on 1st November, 2023. 2.The Applicant has now filed the present Application seeking a review of the sentence imposed upon him by the trial court. His home-made Application dated 2nd April 2025, was identical to that of his co-accused and this ruling therefore will be on all fours with that of the 1st Accused/Applicant. 3.The Applicant listed the grounds that he was a first offender, the breadwinner of his family including his immediate family and parents. He further stated that he be given the option of fine instead of imprisonment. 4.In submissions dated 23rd September, 2025, the Applicant submitted that he had already served 1 year and 8 months and had been transformed through the prison’s rehabilitative programs including bible studies which he had undertaken. That he was a first offender and had learnt to be a law abiding citizen; that he was a father of one child who needed his care; and that he was willing to pay a fine in lieu of imprisonment. 5.With respect to the charge, the Applicant submitted that he was willing to go to driving school, acquire a valid driving licence, and insurance cover and obey all traffic rules. 6.The Application was not opposed by the Respondent. When the Application came up for hearing on 17th November, 2025, the learned Prosecution counsel submitted that they were not opposed to the application and that if the court was persuaded to consider a non-custodial sentence, then a pre - sentence probation officer’s report would be useful. Analysis and deposition. 7.The Applicant had been charged in Chuka CMCC Traffic case No. E035 of 2023 with three counts as follows: causing death by dangerous driving contrary to section 46 of the Traffic Act; riding a motor cycle on a public road without insurance contrary to section 103B as read with section 103B (7); and riding a motor cycle on a public road without a driving licence contrary to section 103 B (5) as read with section 103 B (7) of the Traffic Act. 8.The Court is empowered by Article 165 (6) of the Constitution of Kenya 2010 to review the decision of a subordinate court. Article 165 (6) provides that:“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over a superior court.” 9.Section 362 of the Criminal Procedure Code Cap 75 Laws of Kenya vests in the High Court the jurisdiction to revise decisions made by the lower courts in the following terms:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness legality or propriety of any finding, sentences or order recorded or passed and as to the regularity of any proceeding of any such subordinate court.” 10.The orders which the High Court may make upon revision are provided under Section 364 of the Penal Code. In reviewing a sentence, the High Court will be looking at the legality and correctness of both the proceedings in the lower court as well as the sentence imposed. 11.I called for and examined the record of the trial court. The record shows that the Applicant together with his co – accused faced three counts. The record shows that the accused pleaded to all three counts but it appears that the trial proceeded on the first count only and for which the Accused were convicted and sentenced to serve 7 years’ imprisonment. The committal warrant shows that they were discharged of the first and second counts. 12.My perusal of the record shows that the trial was regular and there was nothing unlawful about the sentence. Section 46 of the Traffic Act provides:-“Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and be liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.” 13.I therefore find that the sentence imposed upon the Applicant was lawful. He was liable to a term of up to 10 years’ imprisonment. 14.In this application, the Applicant prays that his sentence be converted to a fine or that he be granted a non-custodial sentence. 15.The Probation report filed in court on 23rd January, 2026, states that the Applicant was remorseful and was willing to serve a non- custodial sentence. That his family and community were willing to reintegrate him if found suitable for a non- custodial sentence by the court. It was the Probation officer’s recommendation that if found suitable, he could be placed on community service order for the remainder of his sentence. 16.I have considered the Application. It is trite that sentencing is at the discretion of the trial court. As stated in Bernard Kimani Gacheru vs Republic (2002) eKLR, the Court of Appeal stated that:-“It is now settled law, following several authorities by this court and the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 17.In this case, I have considered the seriousness of the offence and the fact that a young life was lost through the misadventure of the Applicant and his co – accused. I have also considered that the Applicant was remorseful and now hopefully older and wiser. He has served approximately half of his prison sentence and has demonstrated remorse. 18.I have also considered that the Respondents were not opposed to the Application and that the Applicant was willing to serve a non – custodial sentence. I find that the Application was merited. The Applicant is released from prison sentence to serve the remainder of his sentence on probation. 19.The first and second counts stated that the Applicant caused the motor vehicle accident while driving without a licence and that the motor cycle too was not registered. He admitted to this court that he was not trained as a rider and did not have a driving licence. 20.The Application succeeds to the extent that the Applicant is released from prison custody to serve the remainder of his sentence on probation. His licence if he has any or acquires one upon release is suspended. He is prohibited from driving or riding any motor vehicle including a motor cycle for the period of his probationary sentence.Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 22ND DAY OF MAY 2026...........................R. LAGAT - KORIRJUDGERuling delivered in the presence of Applicant acting in person, Ms Rukunga for the Republic; Muriuki (Court Assistant)