https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8929

Onyango v Republic & another (Criminal Revision E024 of 2026) [2026] KEHC 8929 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8929 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E024 of 2026 PN Gichohi, J June 23, 2026 Between Pius Omondi Onyango Accused and Republic Respondent and Beatrice Mokeira Onyang Applicant Ruling 1.By a Notice of Motion dated 16th February, 2026, expressed to be brought under Section 348, 362 and 364 of the Criminal Procedure Code, the Applicant seeks:-1.Spent.2.That this Honorable Court be pleased to revise the sentence of 7 years meted out upon the accused/convict and substitute the same with a non-custodial sentence.3.That in the alternative, this Honorable Court be pleased to deem the years of imprisonment served by the convict as adequate in the circumstances and thus order for an unconditional release of the convict.4.That any such further and other relief be granted to the Applicant as this court deems fit and expedient in the circumstances. 2.The grounds are on the face of the Motion supported by her Affidavit sworn on 16th February 2026. She states that she is the mother of the convict herein, and has reconciled with him, conscious of the fact that he is young, in his productive season and that he is remorseful, hence incarceration is not appropriate in the circumstances. 3.Further, she states that she is aware that, having pleaded guilty to the charge, the accused is prohibited by law from seeking sentence review, hence this application. She argues that the revision of the sentence from custodial to non-custodial will foster cohesion and reconciliation in line with Article 159 (2) (d) of the Constitution of Kenya. 4.She assures the court that no appeal has been filed by the accused/convict in respect to the sentence of 7 years imprisonment pronounced in Molo CMCRM E276 OF 2024 Republic vs Pius Omondi Onyango. Applicant’s Submissions 5.The Applicant rehashed the contents of the application dated 16th February, 2026. Respondent’s Submissions 6.On whether the application is merited, Ms Mwaura, a Principal Prosecution Counsel in the office of the Director of Public Prosecutions (Respondent), submits that under Article 157 of the Constitution, criminal prosecutions are instituted by the State through the Director of Public Prosecutions (DPP). The dispute is therefore between the state and the accused person, with the complainant being a key witness for the prosecution. In the circumstances, she submits that an application for revision could only be sought by the state or the convict. 7.In support, the Respondent relies on the Supreme Court decision in Joseph Lendrix Waswa Vs Republic 2020 JELR 97336SC, where it was held: - …We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. 8.The Respondent therefore submits that the Applicant in this matter is the victim of the offence and has no locus standi to move this Honourable court. 9.While highlighting the court’s jurisdiction under Sections 362 and 364 of the Penal Code, the Respondent submits that the purpose and nature of the revisionary jurisdiction of the High Court was examined by Odunga J (as he then was) in the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR, where he stated :“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate Court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower Court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate Court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate Court as well.” 10.It is therefore submitted that, if the subordinate court’s decision is wanting in its correctness, legality or propriety, or the proceedings are irregular, then the High Court has power to correct the same, but it cannot be a substitute for an appeal. 11.On the sentence, and while citing the case of Peter Mbugua Kabui vs Republic [2016] eKLR, it is submitted that though the Applicant has not alleged that there were any manifest “irregularities” which this High Court should remedy, the Respondent was constrained to raise it, considering that the accused was convicted of two different counts. 12.The Respondent urges this court to invoke its revisionary jurisdiction and correct the error apparent on record. Determination 13.This court has considered the application and the submissions by both parties. The court has also accessed the trial court record. The issues for determination are:-1.Whether the Applicant, who is a victim in the case before the trial court should apply for revision.2.Whether the Court should review the sentence as sought. 14.On the first issue and from the Supreme Court decision in the Joseph Lendrix Waswas case (supra), the role of the victim is clear. The Applicant is a victim in the case before the trial court. She has no power to independently seek revision as she has done here. 15.On the issue of the irregularity of the sentence, this court has accessed the trial court record and confirms that the accused was indeed charged and convicted of two counts, and he pleaded guilty to each of them. 16.In Count I, he was charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code. The particulars were that on 30th day of January 2024 at Kayole village of Lengenet Location in Rongai Sub- County within Nakuru County, without lawful excuse, uttered words “ Mama kama hutaki kuninunulia mkate, utahama hapa ama nitakuua na hii kisu” while armed with a knife threatened to kill Beatrice Mokeira Onyango. 17.In Count II, he was charged with stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars were that on 30th day of January 2024, at Kayole village of Lengenet Location in Rongai Sub-County within Nakuru County, stole a thermos flask, one sufuria, a harmer , a sickle , a panga, one lesso, two pliers and two jembes all valued at Kshs. 3,600/= the property of Beatrice Mokeira Onyango. 18.The facts were read to him, and he admitted the same; hence, the plea of guilty was entered on each count. Upon the plea of guilty being entered, the Prosecution indicated that the accused had four (4) previous criminal records and gave the details of the sentences therein. 19.In mitigation, he just stated: “I am asking for a job.” While sentencing, the trial court stated: “ Convict to serve a jail term of 7 years with no option of a fine. Right of Appeal 14 days.” 20.Section 14 of the Criminal Procedure Code provides as follows: -“(1)Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.”[Emphasis added] 21.Further, the Sentencing Policy Guidelines indicate when sentences should run consecutively or concurrently. To be specific, it provides as follows: “Where the offences emanate from a single transaction, the sentences should run concurrently. However, where the offences are committed in the course of multiple transactions and where there are multiple victims, the sentence should run consecutively. The discretion to impose concurrent or consecutive sentences lies in the court. 22.Further, the Court of Appeal in the case of Peter Mageria v Republic [1983] eKLR stated: - “It has been said many times that where different offences form part of one transaction and are committed at the same time – as was the case here – then the sentences should be made to run concurrently unless there are exceptional circumstances for not doing so.” 23.In this case, even if the trial court did not indicate how the sentence would run, as there were two counts, the offences were committed in the same transaction. 24.Regarding the sentence, Section 223 of the Penal Code provides: “Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person, is guilty of a felony and is liable to imprisonment for ten years.” 25.As regards the charge of stealing, Section 275 of the Penal Code provides 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.” 26.In the circumstances of this case, and even if the Applicant is not competent to file this application, Respondent (DPP) has brought to the attention of this court as to the irregularity in the sentence for not having mentioned specifically about the sentence in the two charges the accused was convicted of. 27.Considering that the sentence in the two charges ought to legally run concurrently, then the Seven (7) years imprisonment pronounced is the longest the accused would serve. 28.Further, this court notes that the trial court did not comply with the mandatory provisions of Section 333 (2) of the Criminal Procedure Code. Indeed, the said provision of the law was explained in the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR), where it was held that:-“…..The second is the failure by the Court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code…By dint of section 333(2) of the Criminal Procedure Code, the Court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial Court. With respect, there is no evidence that the Court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the Court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the Court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 29.For those reasons, and in the interest of justice, this court is now inclined to intervene and correct only that irregularity noted by this court otherwise, there is no reason to interfere with the seven-year sentence. 30.In conclusion, this court issues the following orders: -1.The Applicant, being a victim has no locus to file this application and therefore, her prayers are denied.2.The accused person shall continue to serve the seven (7) years imprisonment.3.That sentence shall run from the date of arrest being 30/01/2024. DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JUNE, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 23RD DAY OF JUNE, 2026.………………………DR. JOSEPH SERGONJUDGE