https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8126

Korir v Republic (Criminal Miscellaneous Application E035 of 2026) [2026] KEHC 8126 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8126 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E035 of 2026 RN Nyakundi, J June 9, 2026 IN THE HIGH COURT AT NYERI IN THE MATTER OF MARGRET NJERI KIPCHILIS VS REP. HCCRA NO. 68 OF 2017 eKLR IN THE MATTER OF AUSTINE OWUOR ONYANGO VS REP.HCCRA NO. 69 OF 2017 eKLR IN THE MATTER OF REPUBLIC VS DIANA SULEIMAN AND ANOTHER. 2014 eKLR IN THE MATTER OF ARTICLE 50(2)(P) C.O.K 2010 AND SECTION 26(2) OF THE PENAL CODE Between Boniface Kamarwa Korir Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 15th May 2026, the Applicant seeks the following orders:a.THAT this Hon. Court is clothed with proper jurisdiction to hear and determine matters of this nature pursuant to Article 165(3)(a) C.O.K 2010.b.May this Hon. Court be pleased to order that I be granted Non-custodial sentence.c.The cost/fee involved in preparation and determination of this matter be waived.d.This Hon. Court cannot be held functus officio by fact that it entertained my appeal against sentence for still it can further revise its own orders at deems fit and just. (Vide Rep vs Diana Suleiman & Another. e KLR) 2.Based on grounds that:a.I no longer pose any danger or threat to the society since I have already been rehabilitated.b.I am a first offender as demonstrated in the prosecution records hence request for a second chance.c.I have already met the objectives of sentencing being rehabilitation, retribution, restorative justice, punishment and community protection.d.The term I have already served is enough considering my criminal culpabilitye.My release on non-custodial sentence is beneficial to my family, relatives, society and country at large as I hold Bachelor's Degree; in Pharmaceutical Sciences with IT from Maseno University and I will use the knowledge I have acquired to better the situation of the fore stated parties.f.While in prison, I have been trained in Paralegal and paralegalism thus in a position to be ambassador of obedience of law and order among the youth and engage them in counselling sessions in order to help curb the criminal practices. 3.In support of the application is the annexed affidavit of Boniface Kamarwa Korir who deponed as follows:a.That I am a Kenyan male adult of sound mind hence competent to swear this affidavit.b.I was arrested, charged, tried, convicted and sentenced to serve twenty (20) years imprisonment for the offence of Defilement c/s 8(1) ARW 8(3)of the SOA NO.3 of 2006. (Vide SO. 54/2018 at PM's Vihiga)c.I appealed against both conviction and sentence and it partly succeeded on sentence whereas the same was committed to 15 years imprisonment. (Vide HCCRA NO. 48/2021 at Vihiga).d.I have remained with less than 3 years to complete my imprisonment term hence suitable for non-custodial sentence.e.This Hon. Court has the powers to review my sentence to non-custodial one and should not be held facts official by the fact that it entertained my appeal against sentence. (Vide Republic vs Diana Suleiman and Another. 2014 eKLR). Decision 4.The Superior Courts have delved into the issue of sentencing which is one of the core functions of trial Courts within our Criminal justice system. In the Fatuma Hassan Salo v Republic [2006] eKLR Makhandia J as he then was remarked; Thus, the Court should be guided by evidence and sound legal principles when it comes to the arrival of its decision. He also stated that the Court should put into consideration all the relevant factors and exclude the irrelevant factors. In addition, the Court in Peter M. Kariuki v Attorney General, [2016] eKLR also made the following observations; That a Court has been granted discretion in a manner that is both judicial and reasonable – not upon caprice or personal opinion. This has been emphasized in the judgments of other cases to be useful to the appeal Court when analyzing the judgment of a Lower Court. 5.The Sentencing Guidelines of 2023 provide a foundation and a reference point for Judges and Magistrates in exercising discretion. The Policy Guidelines provides for a three-step approach that is to be applied by a trial Court in individualizing specific sentences befitting specific offences.a.Sentencing options – The Court is meant to consider the sentencing options that are provided for by the statute where the crime falls under. This means a reference to the statute that provides for the crime in question.b.Custodial v non-custodial – For the statutes that provide for both custodial and non-custodial options, the guidelines give principles that are to be considered in analyzing which of these two orders would be the most appropriate.c.The third step is twofold, the choice that is to be considered depends on which option was made in step 3.i.For a non-custodial sentence, the guidelines have also provided a policy through which the Courts discretion is to be applied in choosing the most appropriate non-custodial sentence and eventually mitigation and aggravating circumstances are expected to be put into considerationii.For imprisonment, the same applies, that the guidelines have provided for a policy to be used in determining how long the term of imprisonment should be after the consideration of aggravating and mitigating circumstances. 6.A proper recrafted legal framework is needed to meet the challenging task of appropriate sentencing given the disparities on the various sanctions of what one considers to be the same offence with the prescribed sentence by the Legislature. 7.Having been in this space as a legal professional involved in adjudication of cases within the scope of criminal law, I am of the view that there is an urgent need to carefully study other theories or objectives of sentencing when it comes to punishment in order to determine which ones are acceptable as justifications for punishing the various wrongdoers in specific offences. It serves no purpose to put emphasis on deterrence and abandon the rehabilitative principle or objective if it is thoughtlessly just replaced without very clear guidelines or reasons. There are those who maintain that every different punitive measure taken by the various Courts can be satisfied by a single sentencing scheme, but practically it is difficult to accomplish transformative justice on sentencing by placing emphasis on just one objective. The Courts in Kenya tend to hinge more towards deterrence of an offender than rehabilitation. The common philosophical justifications for the institutional punishments include the following:a.Retribution – punishment is justified merely because the offender has committed a wrong.b.Deterrence – punishment is justified in order to clear the offender from committing further crimes in the future and to deter other members of society in general.c.Rehabilitation – the offender needs to be rehabilitated so that he will behave in a socially acceptable manner.d.Incapacitation – justifies the incarceration of the offender for the protection of society.e.Condemnation – the infliction of punishment upon the guilty person is the symbolic condemnation by society of the individual. 8.The Maximum Prisons facilities in Kenya were designed to hold fewer people than they do at the moment. Apparently, the correctional facilities do not have adequate infrastructure to hold the additional population of inmates hence there is an urgent need to revisit the issue of sentencing regime in Kenya to avoid a catastrophe so that petty offenders should be a subject of non-custodial sentences. It is trite that under the rehabilitative theory judicial discretion has been quite abroad, based on the idea that the punishment should fit the criminal and not the crime. Sentencing should be “individualized” depending upon such factors as the particular circumstances of the crime, the prisoner’s previous criminal record, and the chances that another crime will be committed. Consequently, the Judge or Magistrate must have a great deal of discretion in order to treat offenders on a more individual basis. 9.From the comparative jurisdiction the Court in Mokela vs The State (135/11) [2011] ZASCA 166 the Court held that:“It is well-established the sentencing remains pre-eminently within the discretion of the sentencing Court. This salutary principle implies that the appeal Court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing Court. In my view, this includes the terms and conditions imposed by a sentencing Court on how when the sentence is to be served.” 10.Sentencing in criminal trials is a critical component of the justice system, as it serves as the primary means through which accountability is realized. The efficacy of justice hinges in the perception that the ultimate sentence is fitting and appropriate following a thorough trial and conviction of a Defendant. In the contemporary context, an appropriate sentence is one that is predictable and foreseeable. It is only when this predicatility is achieved that the discretionary powers exercised in judicial sentencing can be considered equitable. Unfortunately, sentencing practices in many jurisdictions often lack this anticipated predictability, leading to disparities and inconsistencies in the imposition of sentences under similar circumstances by Courts. These discrepancies can foster a negative public perception that justice is not being duly served, posing a formidable challenge to the administration of criminal justice. 11.The judiciary developed the sentencing guidelines so as to ensure fairness and uniformity in our legal system thereby addressing the issues of sentencing disparities. These guidelines serve as a crucial tool in promoting consistence and transparency guaranteeing that similar offences receive comparable punishment irrespective of the individual involve. In my practice of law over the years sentencing is arguably the most crucial phase of a criminal trial through which the offender’s primary objective of accountability is realized. Regrettably even on appeal or review of sentence this tool provides a framework in the sentencing process broadly so and the discretion involved by an appeal’s Court should consider the guide in each individual case. Therefore, before imposing a noncustodial sentence the Court must ensure among other considerations that the interests of the victim, convict and the community are taken into account. The imposition of non-custodial sentence is appropriate in the specific case as an alternative to imprisonment. There must exists necessary mitigating factors, evidence, information, or circumstances justifying the imposition of non-custodial sentence. 12.The Applicant seeks review of sentence and I borrow levee from Section 362 & 364 of the CPC as construed with Section 80 of the CPA and Order 45 Rule 1 of the CPR. The guiding principles to start with are those developed by the Court of Appeal in the Bernard Gacheru Case on which it was held as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, 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 factor, or took into account some wrong material, or acted on a 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 discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 13.The observation I make, is that a review of sentence is not a routine procedure. This Court can only review the judgment already considered and pronounced by another Court when it is satisfied that material error manifest on the face of the judgment which undermines its soundness or results in miscarriage of justice. I see many of this application from convicts already serving sentence, but I want to say to them through this ruling that a review a judgment of a competent Court duly constituted under Article 50(1) of the constitution is a serious step and Courts should be reluctant to review any ruling or judgment unless where there glaring omission or patent mistake or like grave error of fact and law which had crept during the preparation of impugned judgment. This application on review of sentence sometimes are filed as virgin grounds or dispute with regard to order of sentence. There should be finality even with litigation in criminal cases. The question of sentence being punitive, harsh or excessive is not an error apparent on the face of the record and is not one to be considered within the scope of Section 362 of the CPC as read with Section 80 of the CPA and Order 45 Rule of the CPR. 14.It follows therefore that the application by the Applicant lacks merit and the same is dismissed with no orders as to costs. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE