https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9900

EK alias C v Republic (Criminal Miscellaneous Application E074 of 2026) [2026] KEHC 9900 (KLR) (Crim) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9900 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Miscellaneous Application E074 of 2026 MW Muigai, J June 30, 2026 Between EK alias C Applicant and Republic Respondent Ruling Background of the Case 1.The Accused Applicant was convicted of the offence of Robbery with Violence contrary to section 296 (2) of the Penal Code .He was sentenced to death and was later resentenced to 30 years imprisonment. 2.A Presentence Report was filed before this Court with the following background of the case. 3.The Applicant was arraigned before the Chief Magistrate Court in Milimani Criminal case No 113 of 2007 where the particulars of the charge sheets were read out as follows . 4.That on 7th November 2005 at Bank of India in Westlands branch within Nairobi county , the Accused jointly with others not before being armed with dangerous weapons namely AK 47 Riffles and pistols robbed John Karanja Ngugi one mobile phone make Motorola T190 valued at Ksh 5000/= and or before or immediately after the time of robbery threatened to use actual violence on the said John Karanja Ngugi. 5.On 7th November 2005 at Bank of India in Westlands branch within Nairobi, the Accused county jointly with others not before being armed with dangerous weapons namely AK 47 Riffles and pistols robbed Hudson Barasa Tordi cash Ksh 2000/= and one mobile phone make Siemens A35 valued at Ksh 4000/= and or before or immediately after the time of robbery threatened to use actual violence to the said Hudson Barasa Tordi. 6.On 7th November 2005 at Bank of India in Westlands branch within Nairobi county jointly with others not before being armed with dangerous weapons namely AK 47 Riffles and pistols robbed Beatrice Oside cash Ksh 3000/= and one mobile phone make Nokia 3310 valued at Ksh 8000/= and or before or immediately after the time of robbery threatened to use actual violence on the said Beatrice Oside. 7.The Applicant was also charged with 2 counts of being in possession of firearms without firearm certificate contrary to Section 4(2) (a) of the Fire Arm Act CAP 114 of the Laws of Kenya . 8.Particulars of the charges were that: On 24th December 2006 at Cheptulu market within Vihiga district of Western province was found in possession of a fire arm namely Tokalev pistol with a serial number and fore certificate which was not visible .The Accused was also found in possession of four rounds of ammunition 7.62 mm and 7.63 mm and 20 rounds of 9mm ammunition without a firearm certificate . 9.Further facts are that the Accused application for Presentencing was brought in High Court Petition No. 315 of 2016. The Application was heard by the Magistrate Court and his sentence was committed to 30 years imprisonment on 9/10/2019 . 10.The Accused later filed High Court Revision No. 11 of 2019 against the 30 year custodial. The revision was determined by Honourable justice Wakiaga .The pre-conviction period was taken into account under Section 333 of the Criminal Procedure Code and the Court ruled that the Accused was entitled to remission .The Court also declined to interfere with the trial Court’s sentence The Application for Sentence Review 11.The application before Court is dated 24/3/2026 and is filed together with Accused supporting affidavit of even date .The Applicant seeks the following orders :-1.That the Court be pleased to note that the Applicant has served a substantial part of his sentence2.That this Court to order that the Applicant serves the remaining part of his sentence under non custodial orders.3.Any other orders the Court will be pleased to make under Section 35 of the Penal Code . Grounds of the Application . 12.The Accused application is brought under the provisions of Section 4 of the Probation of Offenders Act and on the grounds that : 13.The Applicant does not have any pending appeal against the judgement of the Trial Court. 14.The Accused has been in custody for 18 years and remains with 1 year , taking remission into account . That the Applicant qualifies for a non-custodial sentence under Section 4 of the Probation of Offenders Act. The Court can also consider the application under Section 35 of the Penal Code. Supporting Affidavit 15.The Applicant depones that he was arrested as a young offender. He prays that the Court finds the 18 years period spent in custody as sufficient period of imprisonment for the offence. 16.That he possesses skills that will benefit him and the society and he prays for an opportunity to be reintegrated back to the society while he is still energetic and when he is able to work. 17.That the Court considers his good character from the date of arrest as a relevant factor in granting the orders sought in the application. 18.Further that he is remorseful for the offence he was convicted of and he undertakes to keep the peace within the community. The Accused will also abide by the law and such conditions that the Court will order in the application. 19.That the Court has jurisdiction to determine the appropriateness of the Applicant to serve a non-custodial sentence. 20.The Applicant also filed his further affidavit on 28/4/2026 in response to the prosecution’s grounds of opposition .The Accused indicates that his application brought under Section 35 of the Penal Code and prays that the Court appreciates that the period served is retributive and rehabilitative . That the sentencing guidelines also refer to Section 35 providing for conditional or unconditional discharge of the Accused. 21.The Applicant also refers to the case of Bethwel Wilson Kibor and Martin Bahati Makhokha & Another -Vs- Republic (2018) eklr . He seeks a second chance and prays for forgiveness from this Court explaining that he condemns the offence and has since forgiven himself Prosecution’s Grounds of Opposition . 22.The respondent filed grounds of opposition dated 20/4/2026 raising 9 grounds as follows. 23.That the Applicant preffered an appeal against the conviction and sentence delivered in Milimani Criminal case No. 113 of 2007 in High Court criminal Appeal No 795 of 2007 which was dismissed. 24.That the Applicant also filed appeal C.A.No 360 of 2012 at the Court of Appeal which was equally dismissed . The Applicant subsequently sought resentencing and the matter was reffered to the Trial Court for resentencing on 9/10/2019. 25.The Accused sentence was reviewed to 30 years and the Applicant had served 11 years at the time . That the Applicant still remains with 19 years to serve . 26.That Applicant also filed High Court Revision No. 11 of 2019 which was dismissed and the Court reaffirmed the Trial Court’s ruling on resentencing. 27.Lastly that this Court lacks jurisdiction to determine the application after the Court of Appeal made its determination. Written Submissions . 28.The Applicant filed the written submissions dated 15/5/2026. 29.The Applicant submits that he qualifies for early release with or without conditions under the provisions of Section 35 of the Penal Code , he also prays for his release in the spirit of decongestion and that his good character be taken into consideration . 30.That the Applicant has served has also served 2 1/3rd of the sentence and he is left with less than a year . 31.The Applicant also submits that he is a first offender and that he has maintained good character during the sentence period. That he is remorseful , a fact that was noted by the trial Court during resentencing. He prays for Court to grant him an opportunity through sentence review to enable him be of value to his family and society and to use his skill to restore to the community the loss and damage that resulted from the offence. 32.That he has undergone exclusive training which has contributed to his rehabilitation. The Applicant has attached 6 certificates and courses he completed during imprisonment listed as (1)-(f). He also submits that he has a clean record in the community and that he abides by the law as per his prison records. 33.That he was arrested in his youth and that he has young children who are dependent on him. He prays for his early release to be able to rebuild his family. The Prosecution’s Submissions . 34.The Court gave directions on 11/5/2026 and 25/5/2026 , the prosecution’s submissions are not on record . 35.The Court also called for a presentence report and reports from the prison facility which were filed as follows:- The Presentence Report 36.The report was filed on 7/5/2026 . 37.The Accused was interviewed , he admitted that he committed the offence and that his action is attributed to greed for quick money to support his lavish lifestyle need for support his parents his family illiteracy . 38.That the Accused owned a posho mill within Cheptul area where he resided with his wife and 5 children. His children are adults and one is currently working as a matatu driver in Ndondora , one is a hotel attendant in Greece, another is a gas company in Qatar and the last child is a student in college student within Nairobi. The Accused also lost one of his children. 39.The Accused was smoking cannabis sativa to relieve stress and was also suffering from chronic illness, hypertension, HIV/AIDS and vericose veins. The Accused is under care and treatment which was verified through Prison Medical notes. 40.The Accused attitude towards the offender was also recorded .He stated that the period of incarceration has helped him develop a sense of responsibility and to gain formal education and other additional skills . 41.The Accused expressed remorse for the offense and indicated his willingness to reintegrate to the community as a law abinding citizen. He wanted to join Chuka university 42.The Accused family is also willing and prepared to receive him upon release . The Accused wife was ready to cater for his accommodation and other needs. The Accused will reside with his wife within Dandora where he owns a plot and they have also constructed a permanent house . 43.The Accused children were also ready to support him financially ,socially ,economically and emotionally and to ensure successful reintegration. 44.Views of the victim, the banks management is at Sidian Bank Westlands branch and Nairobi branch. The branches reported that they were not familiar with the case and that the victims had since retired or exited and scanty information regarding the victims 45.Community views are represented by the views of the Assistant Chief Cheptui Sublocation and the chief Shaviringa location who felt that the Accused had learnt his lesion and were hopeful that he had changed. They were ready to assist him with the his resettlement and reintegration . 46.The Probation Officer also confirms that the Accused earliest discharge date is 10/12/2026 and that the Accused is suitable to serve a non-custodial sentence through a probation order for the remaining part of the sentence. Prison Records. 47.The letter dated 20/4/2026 from Kamiti medium security prison is on record . The Accused is 54 years and is said to be well prepared to become a useful and law abiding citizen when he is released. That the Accused demonstrated good character in prison and attained special state on 18/3/2021 while working at the farm section. That he has undertaken different courses and attained various certificates. The Accused earliest possible date of release is 10/12/2026 and remains with 8 months Analysis and Determination . 48.I have considered the Applicant's application for his release on a non-custodial sentence for the remaining part of the sentence. 49.Jurisdiction is contested .The Court has also been reffered to the Ruling by Hon. Justice Wakiaga J High Court Revision No 11 of 2019, the Accused’s appeal against the Trial Court’s judgment and sentence also filed before this Court and filed to the Court of appeal . 50.In the case of Samuel Kamau Macharia & another -Vs- Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated that:-A Court’s jurisdiction flows from either the constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 51.I find that jurisdiction is a preliminary point which forms the main issue for determination . 52.Section 357 and Section 362 of the Criminal Procedure Code provides for the right to appeal and /or revision when parties are aggrieved by the decision of a subordinate Court . 53.The right to appeal to a higher Court is also a foundational right provided under Article 50(2) (q) of the constitution that :-(2)Every Accused person has the right to a fair trial, which includes the right:-(q)If convicted, to appeal to, or apply for review by a higher Court as prescribed by law. 56.The Applicant was sentenced to death by the Trial Court. He admits that he appealed before the High Court and Court of Appeal. He also managed to benefit from Muruatetu 1 when his Petition was filed before this Court and later determined by the Magistrate Court. 57.Therefore the Applicant exercised his right of appeal and resentencing. The Applicant also filed Revision against the Ruling of the Magistrate Court on resentencing. 58.The summary of it is that the Applicant has exhausted all avenues of appeal and has had 3 opportunities to address the Trial Court’s sentence. I have considered the submissions and admissions and find that substantial determinations were made by the High Court at different stages of the trial. 59.The latest determination was in the Revision proceedings and the ruling delivered of Honourable Justice Wakiaga delivered on 21/5/2020 at paragraph 7 . That the Accused submitted” ... that he had undergone several rehabilitation programmes while in custody and had been a role model thereat, he was a first offender and sought the sentence to be reduced to the period served so as to enable him rejoin his family .... “ 60.The High Court declined the application for sentence review and consideration for the period served. The Court found that Trial Court considered the mitigation and circumstances of the offence and that the revisionary Court cannot substitute the Trial Court’s decision. 61.The rule of thumb is that a Court cannot sit in review or appeal over decisions made by Courts of concurrent and similar jurisdiction. In the case of Daniel Otieno Oracha –Vs-Republic [2019]eKLR, the Court explained that : -“The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this Court was sitting on appeal of a Judgment of the subordinate Court or if the Petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise......” 62.Further rule is that the matter becomes resjudicata” where there exists is a final decision of a Court of competent jurisdiction and such that further litigation is prevented. 63.I have considered the prayers before this Court and grounds on which they are buttressed. The Applicant seeks an early release and consideration of the period served as sufficient. The issues were substantially the same before this Court in the revision proceedings. 64.The Applicant has also enjoined the Court to consider the provisions of Section 35 of the Penal Code for his prayer for discharge. I have considered this provision and the provisions of Section 4 of the Probation of Offender’s Act and whether jurisdiction exists to determine the application . 65.Section 35 (1) of the Penal Code of the Penal Code provides that :“Where a Court by or before which a person is convicted of an offence is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the Court may make an order discharging him absolutely, or, if the Court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein.” 66.I find that Section 35 of the Penal Code is limited to the Trial Court. In Robe & another -Vs- Republic [2025] KEHC 9611 (KLR) Hon. Muchemi LJ in a similar scenario explained at paragraph 17 and 18 that :-“17 Section 35 is applicable to a convicted person who is yet to be sentenced. The provision is not applicable after a person has been convicted. In the case of the Applicant s, their sentences have been reviewed in resentencing applications before the Magistrates Courts. The death sentences were set aside and substituted with terms of imprisonment for ten (10) years. As such, Section 35 of the Penal Code is not applicable in the circumstances.18.The Applicant s in my view are out to have a 3rd bite of their cherry” 67.Section 4 (1) of the Probation of Offenders Act The provision provides that:-(I) Where a person is charged with an offence which is triable by a subordinate Court and the Court thinks that the charge is proved but is of the opinion that, having regard to youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the Court may—a.convict the offender and make a probation order; orb.without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognisance, with or without sureties, in such sum as the Court may deem fit. 68.In Evans Sagero Mattew -Vs- Republic Criminal Miscellenous Case No. 22 OF 2015 Hon. Okwany LJ explained that “ A reading of the above sections shows that the trial Court can make an order to release an Accused on probation upon conviction. The sections do not however clothe this Court with powers to alter a sentence that has already been passed by the lower Court on an application by the convict, to that of release on probation. My humble view is that this Court could only make orders to release an offender on probation if it was the Court of first instance that tried and convicted the offender. I therefore find that this Court has no powers to alter the sentence already imposed by the lower Court except on appeal or an application for revision, which is not the scenario in the instant case.” 69.In Orina –Vs- Director of Public Prosecutions [2026] KEHC 791 (KLR) the Court also explained that :“Probation is a sentencing option exercised at the point of sentence under the Probation of Offenders Act, and its grant entails the Court re-opening and re-exercising sentencing discretion.7.The jurisdiction of this Court to interfere with sentence is circumscribed. Where a sentence is lawful and imposed in accordance with statute, the Court has no general power to re-sentence an offender merely because circumstances have changed or rehabilitation is alleged…” 70.I similarly find that the Section 4 of the Probation Act which has been used to invoke the jurisdiction of this Court the 3rd time is only applied during sentencing proceedings of the trial Court. Further the Court declines to reopen the case at this stage since the issue of the 71.Accused sentence and possibility of noncustodial options was determined to a finality . 72.The Accused application is best suited for consideration under the provisions of Section 19 of the Power of Mercy Act, 2011 to be determined by Advisory Committee on the presidential power of mercy committee. The Applicant has demonstrated remorse rehabilitation and a good case for rehabilitation. The victim impact was not recorded and has diminished. The Accused has also served a greater part of his sentence. The Applicant’s case can also be selected for judicial calendars on prison decongestion and community service orders. 73.In the upshot, the application is dismissed for want of jurisdiction .The Applicant is allowed to seek other channels of sentence review. DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION AT MILIMANI ON THIS 30TH JUNE 2026 AT NAIROBI.M.W. MUIGAIJUDGE