Kipngeno v Republic (Miscellaneous Criminal Application E046 of 2026) [2026] KEHC 10559 (KLR) (15 July 2026) (Ruling)

Kipngeno v Republic (Miscellaneous Criminal Application E046 of 2026) [2026] KEHC 10559 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 10559 (KLR) Republic of Kenya In the High Court at Bomet Miscellaneous Criminal Application E046 of 2026 JK Ng'arng'ar, J July 15, 2026 Between Collins Kipngeno Applicant and Republic Respondent Ruling 1.The Application that is before me is the Notice of Motion Application dated 5th May 2026 where the Applicant sought the following orders that: -I.Spent.II.Spent.III.Spent.IV.The Judgement and sentence delivered and issued by the Principal Magistrate’s Court at Sotik on 22nd September 2026 in Sotik Criminal Case Number E308 of 2026 Republic vs Collins Kipngeno be and is hereby set aside ex-debito justitiae.V.The Honourable Court be pleased to substitute his current sentence of imprisonment that he is serving with a probation sentence.VI.The Honourable Court be pleased to invoke the provisions of sections 362, 363 and 364 (b) of the Criminal Procedure Code and provisions under the Probation Offenders Act and review the balance of his sentence to a non-custodial sentence.VII.This Honourable Court be pleased to grant any other order and relief as it may deem fit, just and expedient in the dispensation of justice for the Applicant. 2.The Application was brought under Articles 10, 25 (c), 48, 50 (1), 165 (6 and 7), 157 (11) of the Constitution of Kenya and section 20 (1) of the Victims Protection Act, No. 17 of 2014. The Applicant relied on the grounds on the face of the Application and further by the supporting affidavit sworn on 5th May 2026 by Collins Kipngeno. The Applicant’s case 3.The Applicant stated that the trial court did not accord him a fair hearing. That he was denied an opportunity for legal representation notwithstanding the fact that the charges against him were severe and weight. The Applicant further stated that the trial Magistrate did not consider sending him for mental assessment and further failed to warn him of the severity of the sentence. 4.It was the Applicant’s case that the trial Magistrate failed to ask for and obtain a probation report which could have highlighted the mental and cognitive challenges that he suffers from. 5.Through his written submissions dated 4th June 2026, the Applicant submitted that the Applicant entered a guilty plea without the prior understanding of the severity of the charges he faced. That he was under severe alcoholic and drug influence and therefore lacked the legal mind to fathom the severity of the sentences. The Applicant further submitted that his family who were the victims were willing to forgive him and that he would seek rehabilitation. 6.The Prosecution indicated that they did not intend to oppose the review of the Applicant’s sentence. 7.This court’s revisionary jurisdiction is exercised under the provisions of Section 362 of the Criminal Procedure Code which states: -The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 8.In Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR), Odunga J. (as he then was) held that: -“In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor Vs. Muhari Bin Mohd Jani And Another [1996] 4 LRC 728 at 734, 735:-“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammelled and free, so as to be fairly exercised according to the exigencies of each case”. 9.I have gone through the trial court record and I have noted that the Applicant pleaded guilty to the offence of threatening to kill contrary to section 223 of the Penal Code, the offence of malicious damage to property contrary to section 339 (1) of the Penal Code and the offence of offensive conduct contrary to section 94 (1) of the Penal Code. He was convicted on his own plea of guilty and was sentenced to serve 3 years’, 2 years’ and 6 months imprisonment respectively. The sentences were to run concurrently. 10.I have noted the Applicant’s reasons for wanting a review of his sentences. With respect to his contention that the trial court did not order for a probation pre-sentence report before sentencing, it is this court’s position that a request for a probation pre-sentence report is discretionary and the findings of the report are only persuasive and not binding. The trial court was at liberty to sentence the Applicant even in the absence of a probation pre-sentence report. 11.I am in receipt of an Affidavit sworn by Geoffery K. Rono on 9th May 2026. Geoffrey stated that he was the Applicant’s father and stated that together with the Applicant’s mother, they had forgiven the Applicant and prayed that he be granted a non-custodial sentence. Geoffrey further stated that the Applicant had been depressed following the collapse of his business and had resorted to drug and alcohol abuse. They wanted to admit the Applicant into a rehabilitation centre for treatment. 12.This court applauds the reconciliation effort between the Applicant and his family members who were the victims in this case. It is a positive step towards healing and it is this reason that has convinced this court that the Applicant is deserving of its mercy. 13.The Applicant and his family prayed that he (Applicant) serves the remainder of his sentence as a non-custodial sentence. The Sentencing Policy Guidelines 2023 lists the factors that a court should consider when deciding to impose a custodial or non-custodial sentence. They are as follows: -i.Gravity of the offence: In the absence of aggravating circumstances, or any other circumstance that renders a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided with respect to sentences that have been adjudged as deserving less than three (3) years.ii.Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold (where the offence is so serious that neither a fine or community sentence can be justified).iii.Children in conflict with the law: Generally speaking, non-custodial orders should be imposed as a matter of course in the case of children in conflict with the law. The exception to this is in circumstances where in light of the seriousness of the offence, coupled with other factors, the court is satisfied that a custodial order is the most appropriate and would be in the child’s best interest. Custodial orders should only be meted out as a measure of last resort and in accordance with the guidance provided under section 239 of the Children’s Act, 2022. The court shall also issue post-committal supervision orders upon completion of the committal orders or the attainment of the age of majority where it is appropriate to so do in light of the nature of the offence and circumstances of the offender.iv.Conduct of the offender: Non-custodial sentences are best suited for offenders who are already remorseful and receptive to rehabilitative measures.v.Protection of the community: Where there is evidence that the offender is likely to pose a threat to the community, a custodial sentence may be more appropriate. The probation officer’s reports should inform the court of the risk posed by the offender to the community in order to inform sentencing.vi.Offender’s responsibility to third parties: Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence. The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report. 14.Flowing from the above, in the exercise of my discretion and in the interests of justice, it is my finding that the Notice of Motion Application dated 5th May 2026 has merit and is allowed. The Applicant was sentenced on 22nd April 2026 be set free and serve the remainder of his 3-year sentence on probation. 15.The Applicant to serve one (1) year on probation. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF JULY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Siele/Zachary (Court Assistants)Ms Koech for the RespondentApplicant:present