https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11797

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **MISC. CRIMINAL APPLICATION NO. E061 OF 2024** **CHABARI RUCHIANGA..…………....………….APPLICANT** **VERSUS** **REPUBLIC………………….…………………...RESPONDENT** **R U L I N G** 1. Chabari Ruchainga (Applicant) was charged alongside four others with the offence of arson contrary to section 382 (a) of the Penal Code. They were tried and convicted by Hon. N. Kihara (SRM) who also sentenced them to 8 years’ imprisonment effective 26th January 2022. 2. The Applicant appealed his conviction and sentence and the same was dismissed by Gitari J. on 18th January 2024. 3. The Applicant has now approached this court for review of his 8-year sentence and has prayed for a non-custodial sentence on humanitarian grounds. 4. The Application is opposed by the Respondent through submissions dated 23rd April, 2025. The Respondent stated that the 8-year sentence was lenient in the circumstances of the case and that this court (differently constituted) had heard and dismissed the appeal against sentence. 5. The Applicant set out the grounds that he was remorseful, was sickly and was suffering in prison due to his advanced age which he stated was 90 years. 6. At the hearing of the Application on 18th March 2025, the Applicant made oral submissions in which he asked the court to release him to serve the balance of his sentence at home. He explained that the offence arose out of a land dispute and that he was 87 years old at the time. 7. This court observed that the Applicant was of advanced age and directed filing of a social inquiry report by the probation officer. 8. The report was filed on 29th April, 2025. It stated that the Applicant was not remorseful as he maintained his position that he was defending his land. The probation officer also found that the land dispute dated back to the early nintees and was still on-going. 9. The probation officer however recommended an early release due to the Applicant’s advanced age. He annexed a copy of the Applicant’s identification card to his report. 10. I have considered the Application. It is trite that sentencing is at the discretion of the trial court. In **Bernard Kimani Gacheru vs Republic (2002) eKLR,** the Court of Appeal stated that:- ***“ It is now settled law, following several*** ***authorities by this court and the high Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 material factor, or took into account the wrong material, or acted on the 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 the discretion of the trial court on sentence unless, any one of the matters already states is shown to exist.”*** 1. In this case however, I have considered that the Applicant who is serving an 8-year jail term was of advanced age. He stated in court that he was 90 years. His National Identity Card No. 1720374 Serial No. 226400613 issued on 5th July 2010 indicates the date of birth as 1932. 2. The Respondent did not challenge or submit on the issue the Applicant age. Even without accuracy on the actual age of the Applicant, this court observed that he was of very advanced age. It is the view of this court that the Applicant faces extreme hardship in prison and that the prison has no capacity to undertake any meaningful rehabilitation of the Applicant due to his age. 3. I am satisfied that the Applicant deserves the mercy of the court. I will temper justice with mercy and order that the period served is sufficient. The Applicant is released forthwith unless otherwise lawfully held. 4. The Applicant is cautioned not to take the law into his hands in his on-going land dispute and to keep the peace. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 30th day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Ruling delivered in the presence of the Applicant acting in person and Ms Rukunga for the State; Muriuki (Court Assistant).**