Otieno v Republic (Miscellaneous Criminal Application E039 of 2026) [2026] KEHC 12437 (KLR) (21 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E039 OF 2026** **EDWIN OMONDI OTIENO…………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide the notice of motion dated 21st January, 2026 seeks an order for the review of his sentence, so that he is placed on probation or community service orders on the grounds that he is suffering from an unhealed wound which, according to him, has continued to deteriorate while in prison due to delays in receiving adequate medical attention, as evidenced by the attached medical records. 2. He further states that he is a first offender and is genuinely remorseful for the offence he committed and has expressed sincere regret for his actions. 3. The application is supported by the Applicant’s affidavit in which he deposes that he was convicted of the offence of stealing contrary to *Section 275* of the *Penal Code* and sentenced to serve one year imprisonment. 4. He states that he does not challenge either his conviction or sentence but merely seeks to have the unserved portion of his custodial sentence substituted with a probation order. He avers that he is genuinely remorseful for the offence he committed and regrets his actions. 5. The Applicant further deposes that he is in poor health, is a young man, and is the sole breadwinner of his family. He adds that his father is seriously ill, thereby necessitating his application for his release to enable him discharge his family responsibilities. 6. He expresses his willingness to comply with any terms and conditions that the Court may impose should it allow the application for probation. 7. Lastly, the Applicant, in support of his motion, relies on the authority of ***Republic v Paul Murima Mbatia [2021] eKLR,*** in which, according to him, the High Court cited the *Sentencing Policy Guidelines* as discussed by former **Chief Justice Emeritus Dr. Willy Mutunga** in relation to the objectives of sentencing. 8. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 15th June, 2026 by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, in which the said deponent deposes that it is indeed correct that the Applicant was charged and convicted before the Senior Principal Magistrate’s Court at Tamu in *Criminal Case No. E177 of 2024* for the offence of stealing contrary to *Section 275* of the *Penal Code* and was, on 2nd December, 2025, sentenced to serve one year imprisonment. 9. She deposes that the offence of stealing contrary to *Section 275* of the *Penal Code* attracts a maximum sentence of three years imprisonment and that the sentence of one year imprisonment imposed upon the Applicant was lawful, proportionate and well within the discretion of the trial court. 10. She contends that there exists no basis upon which this Court may interfere with the sentence, as the Applicant has not demonstrated that the trial court acted on a wrong principle, considered irrelevant matters, failed to consider relevant factors or imposed an illegal or manifestly excessive sentence. 11. The deponent further states that although remorse is a relevant consideration during mitigation before the trial court, it does not, by itself, constitute a lawful ground for reviewing or setting aside a sentence that was lawfully imposed. 12. According to her, an application for sentence review is not an opportunity for an offender to re-litigate mitigation in the absence of any demonstrated error of law, principle or illegality. 13. With regard to the Applicant’s alleged ill health, the deponent points out that the medical documents annexed to the application do not support his claim. She avers that one of the documents, issued by Salama Cancer Centre, relates to a different patient by the name of **Alex Otieno**, aged 51 years, diagnosed with plasmacytoma, and is therefore wholly irrelevant to the Applicant’s case. 14. She further deposes that the medical report from Jaramogi Oginga Odinga Teaching and Referral Hospital is dated 7th July, 2025, several months before the Applicant’s conviction and sentencing on 2nd December, 2025. 15. Consequently, she contends that the report cannot be relied upon to establish the Applicant’s current state of health or support his assertion that his condition has deteriorated while serving his sentence. 16. The deponent further avers that the Applicant has not demonstrated that he is unable to access appropriate medical treatment while in prison, nor has he produced any evidence from the prison authorities to show that necessary medical care has been denied. She states that the Kenya Prisons Service has established healthcare facilities and referral mechanisms for inmates requiring specialized treatment, and there is no evidence that such services are unavailable to the Applicant. 17. The deponent also states that, having been sentenced to one year imprisonment commencing on 2nd December, 2025, the Applicant is eligible for the statutory remission ordinarily available to prisoners of good conduct under the *Prisons Act,* with the result that he is likely to be released before serving the full custodial term. She therefore contends that the Applicant has already benefited from a substantial statutory reduction of his sentence. 18. In conclusion, the deponent maintains that the sentence imposed upon the Applicant was lawful, proportionate and properly exercised within the trial court’s discretion, and that no illegality, irregularity or error of principle has been demonstrated to warrant interference by this Court. She therefore urges the Court to dismiss the application for want of merit. 19. Having considered the application, the supporting affidavit, the replying affidavit and the Applicant’s submissions, the issues for determination are: 1. Whether the Applicant has established any legal basis to warrant this Court's interference with the sentence imposed by the trial court. 2. Whether the Applicant has demonstrated that he is entitled to be placed on probation or community service in substitution of the unserved portion of his custodial sentence. 20. The first issue for determination is whether the Applicant has established any legal basis to warrant this Court’s interference with the sentence imposed by the trial court. 21. It is common ground that the Applicant was convicted by the Senior Principal Magistrate’s Court at Tamu for the offence of stealing contrary to *Section 275* of the *Penal Code* and sentenced to serve one year imprisonment. 22. Equally, the Applicant expressly states that he does not challenge either his conviction or the legality of the sentence imposed. His plea is simply that the remainder of the custodial sentence be substituted with a probation order or community service. 23. The principles governing appellate or revisional interference with sentence are now well settled. Sentencing is a matter within the discretion of the trial court. 24. Consequently, an appellate or revisional court will not interfere merely because it would itself have imposed a different sentence. Interference is only justified where it is demonstrated that the sentencing court acted upon a wrong principle, overlooked a material factor, considered an irrelevant matter, imposed an illegal sentence or where the sentence is manifestly excessive or manifestly inadequate. 25. In the present application, the Applicant has not identified any error of law, irregularity or misdirection committed by the trial court in arriving at the sentence of one year imprisonment. Indeed, he expressly accepts both the conviction and sentence. 26. There is no contention that the trial court ignored relevant mitigating factors or considered irrelevant matters. More importantly, the sentence imposed was well within the statutory limit prescribed under *Section 275* of the *Penal Code,* which provides for a maximum sentence of three years' imprisonment. The sentence cannot therefore be described as illegal or excessive merely because the Applicant now desires a non-custodial sentence. 27. The Applicant principally relies on his remorse, his status as a first offender and his family circumstances. While these are undoubtedly relevant mitigating considerations, they are matters that properly fall for consideration by the sentencing court before sentence is pronounced. 28. An application for sentence review is not intended to afford a convicted person a second opportunity to re-open mitigation after a lawful sentence has already been imposed. To hold otherwise would undermine the principle of finality in criminal proceedings and convert sentence review into an appeal disguised as a fresh mitigation hearing. 29. The Applicant has also relied upon ***Republic v Paul Murima Mbatia [2021] eKLR*** and the *Sentencing Policy Guidelines.* Those *Guidelines* recognize rehabilitation, restorative justice and proportionality as legitimate objectives of sentencing. However, they do not confer upon the High Court an unrestricted discretion to substitute a lawful custodial sentence with probation merely because an offender has become remorseful after sentence. The Applicant must first demonstrate a legal basis upon which this Court may interfere with the sentence. No such basis has been established. 30. I therefore find that the Applicant has failed to demonstrate any illegality, impropriety, misdirection or error of principle in the sentence imposed by the trial court capable of inviting the intervention of this Court. 31. The second issue for determination is whether the Applicant has demonstrated that he is entitled to be placed on probation or community service in substitution of the unserved portion of his custodial sentence. 32. The Applicant urges the Court to place him on probation or community service on account of his alleged ill health, remorse, youthfulness and family responsibilities. 33. While these considerations evoke sympathy, judicial discretion must always be exercised within the confines of the law and on the basis of credible evidence. 34. The Applicant’s principal ground is that he suffers from an unhealed wound which has allegedly deteriorated while he has been in prison. However, the evidentiary material placed before the Court does not support that assertion. 35. As correctly pointed out by the Respondent, one of the medical documents annexed to the application relates to an entirely different patient, namely **Alex Otieno,** aged 51 years, diagnosed with plasmacytoma. That document has no probative value in establishing the Applicant's medical condition. 36. The second medical report relied upon by the Applicant is dated 7th July, 2025, several months before his conviction and sentence on 2nd December, 2025. It cannot therefore demonstrate that his health has deteriorated during his incarceration. 37. Equally significant is the absence of any medical report prepared by the prison medical authorities showing either that the Applicant presently suffers from the alleged condition or that the Kenya Prisons Service is unable to provide him with appropriate treatment or referral. Mere assertions, unsupported by credible evidence, cannot justify the substitution of a lawful custodial sentence. 38. The Court also takes judicial notice that the Kenya Prisons Service has established healthcare facilities and mechanisms for referring inmates requiring specialized treatment to public health institutions. In the absence of evidence that those facilities have been denied to the Applicant or are unavailable to him, the Court cannot conclude that imprisonment has rendered him incapable of accessing necessary medical care. 39. The Applicant’s further reliance on his being the sole breadwinner and having a sick father is understandable from a humanitarian perspective. However, unfortunate family circumstances are common among convicted persons and cannot, without more, constitute a legal basis for setting aside or varying a lawful custodial sentence. Were that to be the position, the administration of criminal justice would become uncertain and dependent upon personal hardships that invariably accompany imprisonment. 40. It is also noteworthy that the Applicant was sentenced to only one year’s imprisonment and, subject to the applicable provisions of the *Prisons Act* governing remission for eligible prisoners of good conduct, he may not be required to serve the entire custodial term. That statutory benefit, however, is a matter for the prison authorities and does not furnish a basis for this Court to alter an otherwise lawful sentence. 41. Having carefully considered the application, the supporting affidavit, the replying affidavit, the annexures and the applicable law, I am not persuaded that the Applicant has established any legal or factual basis for this Court to substitute the remaining portion of his sentence with probation or community service. The sentence imposed by the trial court was lawful, proportionate and properly exercised within its sentencing discretion. 42. In the result, the notice of motion dated 21st January, 2026 is devoid of merit and is hereby dismissed. 43. This file is hereby closed. DELIVERED (virtually) DATED and SIGNED this 21st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**