https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10029

Omollo v Republic (Miscellaneous Criminal Application E037 of 2026) [2026] KEHC 10029 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10029 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Application E037 of 2026 RN Nyakundi, J July 9, 2026 IN THE MATTER OF ARTICLES 22, 23, 25(d), 27(1) & (4), 160(1) AND 165(3) OF THE CONSTITUTION OF KENYA AND THE PROBATION OF OFFENDERS ACT (CAP. 64) Between Boaz Oketch Omollo Applicant and Republic Respondent (Originating from Criminal Case No. S.O 23 of 2019 – Senior Principal Magistrate’s Court at Vihiga) Ruling A. Introduction 1.The Applicant, appearing in person, has moved this Court by way of a Notice of Motion, supported by his sworn affidavit and a written application, all filed herein, seeking in substance a single order: that he be permitted to serve the remainder of his custodial sentence by way of a non-custodial disposition, namely probation or a community service order, pursuant to the Probation of Offenders Act (Cap. 64) and the constitutional provisions cited in the heading hereof. 2.The background is not in dispute. The Applicant was charged with, tried for, and convicted of the offence of gang rape contrary to Section 10 of the Sexual Offences Act, No. 3 of 2006, in Vihiga Criminal Case No. SO 23 of 2019, and was sentenced to serve fifteen (15) years’ imprisonment. He is presently serving that sentence at Kibos Medium Prison. He deposes that he is a first offender, a young man, remorseful, reformed and rehabilitated, no longer a threat to society, and ready for social reintegration, and on those grounds prays that the balance of his sentence be converted to probation or community service. B. Issues for Determination 3.Two issues fall for determination: first, whether this Court has jurisdiction, in a miscellaneous application of this nature, to substitute a lawful custodial sentence, partly served, with a probation or community service order; and secondly, if such power exists at all, whether the circumstances of this case would warrant its exercise in the Applicant’s favour. C. Analysis 4.On the first issue, the starting point is the Probation of Offenders Act itself. Section 4 of the Act empowers a court, "having regard to the circumstances, including the nature of the offence and the character of the offender," to make a probation order in lieu of sentencing an offender. By its very architecture, probation is a sentencing option available to the trial court at the point of sentence. It is not a mechanism for the mid-term commutation of a lawful custodial sentence already imposed and partly served. The same holds true of a community service order under the Community Service Orders Act, No. 10 of 1998, which by Section 3 thereof is available where a court is dealing with a person at the point of sentence for an offence punishable by imprisonment not exceeding three years, or where the court considers a short custodial term appropriate. Neither statute clothes this Court with power to recall a concluded sentence and re-fashion it years later. 5.Once a trial court has passed a lawful sentence, it becomes functus officio in respect thereof. Any challenge to the propriety, legality or severity of that sentence lies by way of appeal under Sections 347 and 348 of the Criminal Procedure Code, or revision under Sections 362 and 364 thereof. The present application is neither. It does not allege any illegality, irregularity or impropriety in the trial or in the sentence; it is, in substance, an invitation to this Court to exercise clemency. Clemency, however, is not the province of this Court in a miscellaneous application: matters of remorse, reform and rehabilitation of a serving convict are, by design, addressed through the remission regime administered by the Kenya Prisons Service under the Prisons Act (Cap. 90) and through the Power of Mercy under Article 133 of the Constitution, upon the advice of the Advisory Committee established thereunder. The constitutional provisions invoked by the Applicant, including Articles 22, 23, 27 and 165(3), confer jurisdiction to enforce rights and to supervise legality; they do not create a free-standing avenue for the conversion of lawful sentences. 6.Even if this Court were possessed of the discretion the Applicant urges, the second issue would be resolved against him. The offence of which the Applicant stands convicted is gang rape contrary to Section 10 of the Sexual Offences Act, which prescribes a minimum sentence of fifteen (15) years’ imprisonment. The sentence imposed by the trial court was the statutory minimum. An offence which Parliament has deemed so grave as to attract a mandatory minimum custodial term of that magnitude is, by definition, not one in respect of which probation or community service could properly be ordered, whether at sentencing or thereafter. Sexual offences of this gravity visit profound and enduring harm upon their victims, and the sentencing objectives of retribution, denunciation and deterrence would be wholly defeated were the custodial term to be converted to a non-custodial disposition midway through service. 7.Further, the Court notes the considerable lapse of time between the imposition of sentence and the filing of this application, which the Applicant does not explain. A convict who contends that his sentence is excessive or that non-custodial options ought to have been considered must move the appellate or revisional jurisdiction timeously; he cannot, years into his sentence, seek by the back door of a miscellaneous application that which he did not pursue through the front door of an appeal. The assertions of remorse and reform, while noted and commendable if genuine, are matters properly placed before the prison authorities and the Power of Mercy Advisory Committee, and cannot found the orders sought here. D. Disposition 8.The upshot is that this application is incompetent for want of jurisdiction and, in any event, devoid of merit. The Notice of Motion is accordingly dismissed in its entirety. 9.For the avoidance of doubt, this Ruling does not prejudice the Applicant’s entitlement, if any and if so advised, to pursue an appeal or revision through the proper channels, to earn remission in accordance with the Prisons Act, or to petition the Power of Mercy Advisory Committee under Article 133 of the Constitution. 10.It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS, WHATSAPP AND EMAIL THIS 9TH DAY OF JULY 2026.............................R. NYAKUNDIJUDGEIn the presence of:Leina for the StateAccused persons in personOpiyo: Court Assistant