https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8904

Ekamu v Republic (Criminal Revision E204 of 2024) [2026] KEHC 8904 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8904 (KLR) Republic of Kenya In the High Court at Lodwar Criminal Revision E204 of 2024 PJO Otieno, J June 12, 2026 Between Dominic Ekamu Applicant and Republic Respondent (Arising from conviction and sentence at Lodwar SPMCC No. E257 of 2022 Hon D Orimba, dated 4.8.2022) Ruling 1.The Applicant has approached this court by way of an undated Notice of Motion urging it to exercise its supervisory and revisionary jurisdictions to substitute the remainder of his custodial sentence with a non-custodial sentence. He was originally charged in the Senior Principal Magistrate’s Court at Lodwar in Criminal Case No. E257 of 2022 with the offence of burglary contrary to Section 304(2) of the Penal Code under Count I, and stealing contrary to Section 279(6) of the Penal Code under Count II. 2.On own volition, the Applicant entered a plea of guilty to Count I and the alternative charge to Count II. 3.Following the Applicant's admission of the facts, the trial court entered a plea of guilty and consequently convicted him on his own plea. On 4th August 2022, the court sentenced him to serve three (3) years’ imprisonment for the burglary charge under Section 304(2) and seven (7) years’ imprisonment for the stealing charge under Section 279(b), to run concurrently. Aggrieved with the sentences, the Applicant filed a first application for revision dated 3rd May 2022 which sought to challenge its severity. This court dismissed the application, finding no incorrectness, impropriety, or illegality in the trial court’s decision. 4.The Applicant has once again approached this court, urging the substitution of the remainder of his custodial term with a non-custodial sentence. 5.To facilitate an informed decision, this court directed the Probation and Aftercare Service to conduct a social inquiry and submit a Sentence Review Report on the suitability of the Applicant for a non-custodial measure. 6.The court has notably considered the Sentence Review Report dated 8th April 2026 submitted. The Respondents have raised no objection to the release of the Applicant on a non-custodial sentence. Their only objection is to the community service order recommended by the probation officer. Instead, they propose probation order under the Probation of Offenders Act arguing that Section 3 of the Community Service Orders Act (Cap 93) deprives this court of jurisdiction to make a community service order. 7.The said Section 3(1) of the Community Service Orders Act, 1998, provides as follows:Where any person is convicted of an offence punishable with—(a)Imprisonment for a term not exceeding three years, with or without the option of a fine; or,(b)Imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service. 8.Here, the Applicant was sentenced to concurrent terms of three (3) and seven (7) years. A community service order is not a tool designed to bypass sentences imposed for serious felonies such as burglary and aggravated stealing but an alternative to imprisonment for minor and petty offenses to prevent prison overcrowding and keep minor offenders from mixing with hardened criminals. In Kilonzo & 3 Others vs Commissioner General of Prisons & 3 Others [2022] KEHC 13391 (KLR), the High Court held that for a person to qualify for a Community Service Order under section 3(1) of the Community Service Orders Act the sentence must not exceed three years. That such persons serving a term exceeding three years cannot benefit from a Community Service Order unless the court first reduces the custodial sentence to three years or less. 9.Further, in the case of Gilbert Mwangi Kiai vs Republic [2017] eKLR, the court observed that:“The Community Service Order is therefore not meant to be an easy way out of a serious sentence. It is the sentence that ensures that an offender serves his sentence within his or her community, while going on with his or her normal life. It is a path to complete reintegration of an offender, who may even have committed a serious offence and who is on the way to recovery. It is the one sentence that is expected to grow the trust of the Mwananchi that the Criminal Justice System works. That is why the offender is to do public work, in the eyes of the community he offended, as a form of payback, for the benefit of the community, while benefitting from its non-custodial nature. It is a serious sentence and must be accorded its place, because in addition it saves tax payers the money spent incarcerating offenders, reducing contamination by serious offenders and congestion in the prison….” 10.This court cannot therefore make a community service order in respect of the Appellant’s sentence whose head term exceeds three years. 11.However, while Section 3(1) of the Community Service Orders Act preclude the Applicant from a community service order, the court is still vested with jurisdiction to transition the Applicant into a non-custodial setting through a structured Probation Order. Under Section 4 of the Probation of Offenders Act, the Court is clothed with broad discretionary powers to make a probation order in lieu of any custodial sentence, or as a substitute during a sentence review. 12.Section 4(1) and (2) of the Act provides that where a person is convicted of an offense, and the court is of the opinion that, having regard to the youth, character, antecedents, home surroundings, health, mental condition, or the nature of the offense, it is expedient to release him, the court may make a probation order. 13.The facts of this case present a compelling argument for non-custodial transition. The Applicant pleaded guilty and has already served a significant portion of his sentence having been left with less than three (3) years. The prison assessment reveals that the Applicant has maintained exemplary discipline, has never been punished and was at one point appointed to a trusted leadership role. This coupled with the fact that the Applicant is a first-time offender, has genuinely showed remorse and has acquired useful life and vocational skills to support his family through lawful means, his continued incarceration serves no pedagogical or rehabilitative purpose. 14.The court holds that keeping a fully reformed, first-time offender in a prison facility at the taxpayer’s expense runs counter to the state's prison decongestion policy and the core objectives of the Sentencing Policy Guidelines. Placing him under a structured probation order will allow him to reunite with his family, engage in productive economic activity, and continue his rehabilitation under professional supervision. 15.In upshot, the court finds the application for sentence review to be highly meritorious and is hereby allowed. The remainder of the custodial sentence of imprisonment imposed on the Applicant is hereby substituted with a Probation Order for a period of twelve 12 months from the date of this ruling. 16.Should the Applicant fail to comply with any of the terms of this Probation Order under the supervision of the Probation Officer, Lodwar Station, or if he commits another offense during the probation period, he will be liable to be arrested, brought back to this court, and sentenced to serve the remaining term of his original custodial sentence in prison. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE, 2026.PATRICK J O OTIENOJUDGE