https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9749

Golicha v Republic (Criminal Revision E016 of 2026) [2026] KEHC 9749 (KLR) (Crim) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9749 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Revision E016 of 2026 MW Muigai, J June 30, 2026 Between Ali Golicha Golicha Applicant and Republic Prosecution Ruling 1.The Accused/ Applicant filed the Notice of Motion dated 26/2/2026 and Supporting Affidavit praying for Orders that:1.The Court recalls file No Milimani Chief Magistrate Criminal Case No E 864 OF 20242.The Court revises and or set aside the custodial sentence of 2 years issued by Honorable Mutai on 24/2/2026.3.The court substitutes the sentence with a fine or such non-custodial sentence the Court deems fit. 2.The Application is brought on grounds that, the accused was convicted of the offence of Stealing by Servant and was sentenced to 2 years imprisonment. 3.That the Trial Court failed to consider the option of a fine under Section 26 (3) of the Penal Code and other non-custodial sentence. 4.The accused deponed in his affidavit that he is 27 years old. That he sought for leniency in his mitigation and that he was also remorseful. That he indicated his willingness to repay the complainant from the time of the hearing. However, the custodial sentence given made intention to compensate impossible to achieve. Prosecution’s Grounds Of Opposition. 5.The Prosecution filed the grounds of opposition dated 12/4/2026. The prosecution contends that the accused application is unsubstantiated and that it lacks merit .That the sentence is lawful, appropriate and commensurate to the offence. Appellant’s Written Submissions. 6.The accused submits that this Court has jurisdiction to determine the application. That the 2 years imprisonment without a fine is harsh and excessive. The Court also failed to consider his mitigation and the Judiciary Sentencing Principles .That mitigation; the accused is a first offender and he was remorseful and willing to make restitution. The Accused relies on the case of Wanjema Vs- Republic (1971) EA and Shadrack Kipkoech Kogo vs Republic Eldoret Criminal Appeal no 253 of 2003 CoA; sentencing is discretion on of Trial Court.Antony Njuguna Wanjema Vs. Republic [2014] EACA KECA 544 (KLR) acquittal of Accused person on Sexual defilement offence PW1 not truthful witness – defiled by other men/boys. 7.The Trial Court should have applied Section 26 (3) of Penal Code on alternative sentences and considered interest of justice and proportionality. Republic vs Eric Munee Nundu& Anor 1978 KEHC 12 KLR HCT stated the offender was 1 offender and ought to be placed on Probation. Prosecution Written Submissions 8.The prosecution reiterates that the accused mitigation was considered and that the court also called for a presentence report. The applicant has not demonstrated that the sentence is excessive, illegal and/or that the court acted on the wrong principle. That the sentence is lawful. 9.The Trial Court considered mitigation as evidenced by Trial Court record CM CT E864 of 2024 that was availed for perusal. The ODPP relied on the case Bernard Kimani Gacheru vs Republic Cr App no 188 of 2000 on sentencing by Trial Court and the next Court to intervene where sentence is not on legal basis.Analysis And Determination.Mwangi Vs. Republic Criminal Appeal E111 of 2023 [2026] HCT Muraya Gicheru Vs. Republic (CA. 188 of 2000) [2002] KECA 14 KLR Hillary Kipkurui Mutai Vs. Republic [2022] KRC1170 KLR 10.Section 362 of the Criminal Procedure Code refers to this court revisionary jurisdiction over subordinate court proceedings and orders. The Court is granted jurisdiction to call for the records and to“….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, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 11.I have considered the application which seeks sentence review and the lower court filed placed before this court. 12.The Court’s jurisdiction on review is limited to correcting errors and irregularities in the orders made. Where sentence is placed for revision, the Court may only intervene where the sentence is harsh and excessive or where it is inordinately low or without taking into account legal provisions and policy direction as was stated inOgolla s/o Owuor v. Republic, (1954) EACA 270, the Court of Appeal also settled the additional principle that:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors” 13.The sentence must be commensurate with the offence and that the accused must account for his wrong doing.In R. vs. Scott (2005) NSWCCA 152 the South African Court held that : -“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…One of the purposes of punishment is to ensure that an offender is adequately punished…a further purpose of punishment is to denounce the conduct of the offender.” Determination Of The Accused’s Persons Application. 14.The accused was charged with the offence of Stealing by Servant. The particulars were that : On 9th July 2024 at Equity Bank Kenya Ltd Kiserain Branch in Kiserian Township within Kajiado County being an employee of Equity bank K Ltd as a teller stole Ksh 800,000/= the property of Equity Bank K ltd which came in his possession by virtue of his employment. 15.After the trial the Accused stated in his mitigation that, he is a first offender and that he is remorseful .He is ready to reform and he sought leniency 16.The Presentencing Report indicated that the Accused sought a non-custodial sentence and that he sought probation sentence to continue with his studies. The victim concerns were also indicated in the Investigating Officer’s Report who opposed non-custodial sentence on ground that the offender was not able to pay back the money. That the offender should be compelled to pay back the money. 17.A non-custodial sentence was considered as in appropriate in the circumstances. The Court considered the Presentence Report and the victim concerns. The offender was sentenced to 2 years jail term and cash bail was to be refunded to the Depositor 18.The issues for determination are: Whether the sentence was harsh and unreasonable .Whether the sentence can be reviewed to compensation and non-custodial options. WHether The Sentence Was Illegal , Harsh And Unreasonable . 19.Section 281; CPC provides that where the offender is a clerk or servant, and found guilty of the offence; he is liable to imprisonment for seven years. The sentence does not apply in mandatory terms such that the Trial Court has discretion to give less imprisonment period. Although the option of fining the offender is not available, Section 26 of the Penal Code provides for addition or alternative option of fines where the statute does not provide for a minimum imprisonment That :A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that—(i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; 20.I find that Trial Court exercised discretion under Section 281 of the Penal Code in a manner that was favorable to the Accused Person. First, the Trial Court settled for a lesser period than 7 years imprisonment. Second , the Court was also lenient considering the nature of the offence, the circumstances of its commission; this was an employee in a bank in a position of trust and the Prosecution proved that he siphoned funds through a witness Account and later withdrew the money. It was not a one-off incident and the amount stolen is Ksh 800,000/-its impact on the victim and the society was dire and the funds were not recovered. 21.Section 275 of Penal Code categorizes theft as a felony and also provides the general sentence as 3 years imprisonment where some other punishment is not indicated. That :“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”Even then the Applicant was sentenced to less than 3 years imprisonment. 22.The circumstances of the offence are indicated in the judgment where the Court found that the accused hatched a plan to steal from the bank and got away with Ksh 800,000/=. His explanation is that he ran into a deficit of Ksh 2.8 Million and that he would pay it back was also declined by Trial Court. 23.The gravity of the offence and impact on the real victim , in this case the bank and the amount it was defrauded which was a huge sum; is a key consideration to be balanced with the Accused person’s mitigating factors. 24.In the case of Kamau -Vs-Republic (2023) KEHC3434(KLR) Hon Grace Nzioka LJ declined a similar application for sentence review where the accused was sentenced to 1 year imprisonment. The court observed at paragraph 17 and 18 that:-“However, I note that the applicant does not explain what he did with the stolen money. He does not explain how the bank that lost the funds will recover it. It is noteworthy that the bank has already refunded the complainant the money and therefore the real victim is the bank. Again, the bank is a mere agent holding depositors’ money as a Trustee; see (Foley vs Hill 1848). 18.Therefore, to allow the applicant to walk to freedom in disregard of the loss incurred will encourage other potential offenders and be a mockery to justice. Even though I have considered the period he was in custody, I note that, the sentence imposed is too lenient in the circumstances given.” 25.I further note that the Trial Court called for the Pre-sentence report and heard the accused on his mitigation. The sentence complied with 216 of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines. 26.Paragraph 22: 12 of the Judiciary Sentencing Guidelines provide that:“… in order to pass a just sentence, it is pertinent to receive and consider relevant information, that the court should, as a matter of course, request for pre-sentence reports where a person is convicted of a felony as well as in cases where the court is considering a non-custodial sentence. In respect to children in conflict with the law, social enquiry reports should be requested for as a matter of course. Whilst the recommendations made in the pre-sentence reports are not binding, the court should give reasons for departing from the recommendations.” 27.Whether the Court erred in failing to rely on the Report and for failing to record its reasons it reached the sentence meted out; is an issue that touches on the Trial Court’s discretion and cannot be amended in revision. That no prejudice was occasioned since the accused personal situation was considered and balanced with other competing interests key to objectives and principles of sentencing. Whether The Sentence Can Be Substituted With Order Of Compensation And Or A Fine Or Non-custodial Sentence. 28.Section 31 of the Penal Code provides for the Courts jurisdiction to order compensation to any person injured by the commission of the offence either in addition to or in substitution for any other punishment. 29.Section 175 (2) of the Criminal Procedure Code further provides that compensation can be considered and is recoverable as a civil liability that:“A court which—convicts a person of an offence or, on appeal, revision or otherwise, confirms the conviction; and finds, on the facts proven in the case, that the convicted person has, by virtue of the act constituting the offence, a civil liability to the complainant or another person (in either case referred to in this section as the “injured party”), may order the convicted person to pay to the injured party such sum as it considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person in respect of the civil liability concerned.” 30.The accused did not indicate his intention and ability to pay back the victim during mitigation and preparation of the Presentence Report. No proposals were made the accused stated that he was remorseful and that he was willing to reform. These mitigation factors are best presented before the Trial Court. 31.Further, considering the nature of the offence which is a felony and that the accused has served 5 months of the 2 years jail term, I find that the intended objective was his retribution and reformation which is to be achieved within long term and proportionate period of incarceration. The accused has not demonstrated any reforms during the period served. 32.The Judiciary Sentencing Policy Guidelines (2016) outline the objectives of sentencing at paragraph 4.1 and indicate that all sentences imposed must meet these objectives. The sentence should include the following attributes“Retribution, Deterrence Rehabilitation,Restorative justice, Community Protection, Denunciation.” 33.Paragraph 4,2 indicates that even though the objectives may conflict with each other in certain instances, the objectives must still be considered. 34.In the upshot, I find that the sentence was lawful , commensurate to the offence and leniency was considered in favour of the accused . There being no ground for its revision before this court , the application for review of the accused sentence as prayed in the notice of motion is declined. DELIVERED DATED &SIGNED IN OPEN COURT CRIMINAL DIVISION AT MILIMANI ON THIS 30TH JUNE 2026 AT NAIROBI.M.W.MUIGAIJUDGE