https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9251

Macharia v Republic (Criminal Revision E020 of 2026) [2026] KEHC 9251 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9251 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Revision E020 of 2026 MN Mwangi, J June 12, 2026 (ARISING FROM KIAMBU HCCRC NO. E006 OF 2021) Between Boniface Wanjohi Macharia Applicant and Republic Respondent Ruling 1.Before this Court for determination is an undated Notice of Motion application filed pursuant to Section 329 of the Criminal Procedure Code and the Sentencing Policy Guidelines, 2023. The applicant seeks orders of review of his sentence downwards, an order for re-sentencing and/or an order for a non-custodial sentence. 2.The application is premised on the grounds set out on the face of it, and an undated affidavit sworn by Mr. Boniface Wanjohi Macharia, the applicant herein. Mr Wanjohi averred that he was charged and convicted on his own plea of guilty and sentenced to 15 years imprisonment for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He stated that he has been in custody since 14th July 2020, wherein he has been rehabilitated from alcoholism, which influenced the occurrence of the offence as he was unable to comprehend his actions. 3.The applicant stated that he is a father of one child who lacks his (applicant’s) care and protection. He stated that he is remorseful for the offence he was convicted of, which has caused pain and embarrassment to his family. He averred that this Court has the jurisdiction to review his sentence to 10 years imprisonment, or to impose a non-custodial sentence under Section 35 of the Penal Code. He urged this Court to find that the sentence already served is sufficient as he has been rehabilitated while in custody. He relied on the case of Republic v Godfrey Muchanji Odhiambo Nairobi High Court Criminal Case No. 55 of 2015 [2019] eKLR. 4.He submitted that this Court has the jurisdiction to consider mitigation as was held in the case of Daniel Wachira Mathu v Republic [2019] eKLR, where the Court directed the remainder of a sentence of 4 years and 8 months to be split into 3 years’ non - custodial sentence and 1 year 8 months’ custodial sentence. He also submitted that he has been of good character from the date of arrest, which is a relevant consideration for review, by dint of Section 56 of the Evidence Act. He urged this Court to consider the interests of justice and grant the orders sought. 5.The Prosecution orally responded to the application on 23rd April 2026. Mr. Gacharia, learned Principal Prosecution Counsel submitted that the applicant can only benefit from reduction of the sentence from July 2027. Counsel did not have an objection to the applicant being granted a non - custodial sentence when he has less than 3 years’ imprisonment to serve. 6.The applicant reiterated his prayers to this Court for reduction of sentence as he has been in custody since July 2020. He indicated that his children do not have anyone to take care of them as his mother who is single, is asthmatic and has high blood pressure. He stated that he has learnt landscaping in prison and that he is a mechanic by profession. Analysis and Determination. 7.I have considered the Notice of Motion application, the supporting affidavit and the oral response by the Principal Prosecution Counsel. I have also considered the written submissions by the applicant. The main issue for determination is whether re-sentencing should be done in this matter. 8.In determining if re-sentencing is appropriate in this instance, this Court has to consider the mitigation that was proffered by the applicant when he was sentenced, as per the provisions of Section 216 of the Criminal Procedure Code, which provides that :-“The Court may, before passing sentence or making an order against an accused person under section 215 receive such evidence as it thinks fit in order to inform itself as to the sentence or order to be passed or made.” 9.In an application for re-sentencing, Courts must consider all the evidence that was tendered before the Trial Court and the applicable law before deciding on whether it is appropriate to re-sentence. Section 329 of Criminal Procedure Code provides as follows-‘‘The Court may, before passing a sentence receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.’’ 10.In this application, it is not in doubt that the Trial Court considered the applicant’s mitigation. In murder cases, when it comes to the issue of re-sentencing, Courts have to abide by the guidelines set by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)[2017] KESC 2 (KLR). The said Court stated as follows-“To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(a)age of the offender;(b)being a first offender;(c )whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process.” 11.Based on the above guidelines, it is not in doubt that the applicant is a young man of about 34 years of age, given that he was 31 years old at the time of sentencing. The Prosecution Counsel in the Trial Court, informed the said Court that the applicant was a first offender. The applicant pleaded guilty after execution of Plea Bargain Agreement. He now states that he has been of good character during the incarceration period and that he is remorseful for having committed the offence. 12.The commission of the offence in issue leans to gender-based violence as the applicant raped his grandmother (the deceased herein), fractured her left leg and locked her in her room, where she was found by relatives and taken to Hospital. She passed away after three (3) months. This Court cannot overlook the heinous and abominable nature of the offence the applicant committed and the trauma suffered by the deceased in her last three months before she died, due to rape committed by her own grandson. 13.Inasmuch as the applicant stated that he has been rehabilitated and he has reformed through various programs while in prison, this Court is of the considered view that the objectives of sentencing are not only rehabilitative, but deterrence and proportionality are also of critical importance. This was stated in the Court of Appeal in Daniel Kipkosgei Letting vs Republic [2021] eKLR. The said Court stated as follows-“the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to.” 14.From the Sentencing Policy, the sentence meted out should be commensurate to the gravity of the offence committed and the manner in which it was committed. The applicant pleaded guilty to the offence of manslaughter which carries a punishment of life imprisonment. Hon D. Chepkwony J., considered the mitigation made by the applicant, but had to balance the said mitigation with justice to the deceased person, and meted out the 15 years’ custodial sentence, the applicant is serving. In addition, the Judge ordered for the period that the applicant had been in remand during the pendency of the trial to be deducted from the sentence of fifteen (15) years imprisonment. 15.This Court is not persuaded that it should reduce the sentence or even convert a portion of the said sentence to a non-custodial one. This Court finds that the application herein lacks merits. It is hereby dismissed.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 12TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-The applicant in personNo appearance for the DPPMs Julia – Court Assistant.