Muhimwa v Republic (Miscellaneous Criminal Application E125 of 2025) [2026] KEHC 7139 (KLR) (12 May 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **MISCELLANEOUS CRIMINAL APPLICATION NO. E125 OF 2025** **BONIFACE MUHIMWA ……………………………….……….…...………… APPLICANT** **VERSUS** **REPUBLIC …..…………………………………………………….…..……… RESPONDENT** **RULING** 1. Before this court for determination is a Notice of Motion application seeking a review in accordance with Article 50 (2) (p) (q) of the Constitution of Kenya 2010 and seeks to be placed under probation for the remainder of his sentence. 2. The Applicant was arrested and charged with the offence of escaping from lawful custody contrary to section 123 of the Penal Code and sentenced to 2 years’ imprisonment. He claims he is remorseful and has undergone rehabilitation during his time in custody. Further, he argues that the sentence imposed on him was harsh and that the court should consider his mitigating circumstances and reduce his custodial sentence. 3. The Respondent opposed the application and submitted that the purpose of the Applicant's sentence was to reform him. That since he escaped from custody, he had failed to appreciate the reason for the initial sentence and hence the need to complete the 2-year term. 4. The Applicant, in his submissions, claimed that he was shot and was not properly treated for the injuries sustained. **Analysis and Determination** 1. Section 123 of the Penal Code provides that any person who, being in lawful custody, escapes from that custody is guilty of a misdemeanour. A misdemeanour is any offence punishable by a sentence of less than three years, whereas a felony is any offence punishable by a sentence of three or more years' imprisonment. Therefore, the two-year sentence imposed by the trial court falls within the permissible range of sentences for a misdemeanour. 2. Article 50(2)(q) of the Constitution guarantees every convicted person the right *“to appeal to, or apply for review by, a higher court as prescribed by law”.* 3. The Court of Appeal in ***Bernard Gacheru v Republic [2002] eKLR,*** stated that review or revision of a sentence is an exceptional remedy exercised sparingly and only where:- *(a) the sentence is illegal;* *(b) it is manifestly excessive or inadequate; or* *(c) there has been a miscarriage of justice. The said Court emphasized that mere dissatisfaction with the sentence or subsequent remorse does not, without more, justify interference.* 1. The Applicant’s escape from lawful custody strikes at the very heart of the administration of justice. Escape from lawful custody is not a minor regulatory offence but one that undermines the authority of the Courts and Prisons. It therefore calls for tough measures to deter others from that route. 2. On his argument that the sentence is harsh, the Applicant urges the Court to consider his remorse, rehabilitation through programmes undertaken in custody, and the fact that he was shot and has not received adequate medical treatment. 3. The updated Judiciary Sentencing and Policy Guidelines, 2023, expressly direct courts to weigh an offender’s character, health, and post-conviction conduct when determining or reviewing a sentence. 4. The Petitioner’s claim of being shot and untreated raises a serious constitutional issue under Article 28 on human dignity. This Court cannot turn a blind eye to allegations of inadequate medical care in Prison. However, such a complaint is more appropriately addressed by a specific order directing the Kenya Prisons Service to ensure immediate and adequate medical attention, rather than by reducing or substituting a lawful sentence. 5. Although the Applicant is remorseful and states that he has been rehabilitated, this does not automatically entitle an offender who has already breached custody to early release or probation. 6. The Applicant prays to be placed on probation for the remainder of his two-year sentence. However, the nature of the offence here is decisive. Escape from lawful custody is an offence against the administration of justice itself. By granting a probation order, this court would send the wrong signal that escaping lawful custody carries no real consequence. 7. Considering the circumstances of this case, I am not satisfied that it is expedient to release the Applicant on probation for the remainder of the sentence. The two-year term is not manifestly excessive, and the Applicant has not placed before the Court any material showing that continued incarceration would cause irreparable harm beyond what can be cured by proper medical care. 8. In the end, the application for review of the two-year sentence and for placement under probation is dismissed. The sentence imposed by the trial court remains lawful and is hereby upheld in its entirety. Dated, signed and delivered at Kakamega this 12th day of May 2026. **A. C. BETT** **JUDGE** **In the presence of:** The Applicant in person Ms. Akimat for the Respondent Court Assistant: Polycap