https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12445

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E117 OF 2026** **FRANCIS APOLLO ALEMBI………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide his notice of motion dated 25th July, 2025 seeks an order for the review of his sentence, so that he may be accorded the least punitive sentence, contending that he is remorseful for having committed the offence and praying that the custodial sentence imposed upon him be substituted with a non-custodial sentence. 2. The application is supported by the Applicant’s affidavit sworn on 25th July, 2025 in which he deposes that he was convicted and sentenced to serve four years’ imprisonment for the offence of stealing contrary to *Sections 268* and *275* of the *Penal Code.* He states that he pleaded guilty to the charge and maintains his plea. 3. The Applicant further deposes that he is not challenging his conviction but seeks a review of the four-year custodial sentence to a less punitive sentence, preferably probation or a community service order. He states that he is sorry and remorseful for having committed the offence. 4. The Applicant further relies on the decision in ***Jonathan Mutinda v Republic [2004] eKLR*,** which, according to him, emphasized that a trial court should consider other sentencing options, including probation, before resorting to a custodial sentence. 5. The Applicant’s motion is resisted by the Respondent. To that end, the Respondent filed a replying affidavit sworn by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, on 22nd October, 2025 in which the said deponent contends that the Applicant pleaded guilty before the Senior Principal Magistrate’s Court at Maseno in *Criminal Case No. E334 of 2024* to the offence of stealing contrary to *Sections 268* as read with *275* of the *Penal Code,* and was consequently sentenced to four years’ imprisonment. 6. The deponent opposes the Applicant’s prayer for the substitution of the custodial sentence with a non-custodial sentence, whether probation or a community service order, on the grounds that the nature of the offence of theft calls for a custodial sentence in order to achieve the objectives of deterrence and retribution, and that a non-custodial sentence would trivialize the seriousness of the offence and fail to reflect its gravity. She contends that imprisonment is necessary to send a clear message that property offences attract appropriate punishment. 7. The deponent, however, states that notwithstanding the Respondent’s opposition to the Applicant’s prayer for a non-custodial sentence, the Respondent is bound by the law and brings to the Court’s attention the alleged illegality of the sentence imposed. She contends that *Section 275* of the *Penal Code* prescribes a maximum sentence of three years’ imprisonment for the offence of theft and that the four-year sentence imposed by the subordinate court therefore exceeded the statutory maximum and was illegal and *ultra vires.* 8. Consequently, she urges the Court, in exercise of its revisionary jurisdiction under *Section 364* of the *Criminal Procedure Code,* to set aside the four-year sentence and substitute it with the lawful maximum sentence of three years’ imprisonment, running from the date of the original conviction and sentence. 9. The Applicant filed submissions in which he proffers that he is not challenging either his conviction or the sentence imposed upon him but seeks the Court’s leniency in substituting the four-year custodial sentence with a less punitive sentence. 10. He reiterates that he pleaded guilty to the offence and expresses remorse and regret for having committed it. He further pleads for mercy on the ground that he is the only son in his family, that he left behind a young wife and a three-month-old child, and that his mother, who is elderly and unwell, is now taking care of the child following the departure of his wife. 11. The Applicant contends that his incarceration has left his young family in a vulnerable financial position, as he was previously able to support them. 12. The Applicant further submits that, having spent time in prison, he has become a law-abiding and remorseful person and undertakes not to engage in criminal activities in the future, stating that he intends to work lawfully to support his family. 13. He urges the Court to consider that the complainant did not suffer any loss as the stolen items were recovered and returned to the owner. He further relies on ***Jonathan Mutinda v Republic [2024] eKLR,*** which he contends emphasized that courts should consider alternative sentencing options, including a community service order, before resorting to a custodial sentence. He consequently urges the Court to allow his application and substitute the sentence with a less punitive one. 14. The Respondent did not file written submissions but relied wholly on the averments contained in the replying affidavit sworn by **Ms. Muema.** 15. Having considered the application, the supporting affidavit, the replying affidavit and the Applicant’s submissions, the issues for determination are: 1. Whether the four-year sentence imposed upon the Applicant was lawful. 2. Whether the Court has jurisdiction, in exercise of its revisionary jurisdiction, to interfere with and vary the sentence imposed by the subordinate court. 16. The first issue, which is whether the four-year sentence imposed upon the Applicant was lawful, calls for an examination of the offence for which the Applicant was actually charged and convicted. The Court must begin with the lower court record, rather than the description of the offence as appearing in the Respondent’s replying affidavit. 17. The record reveals that the Applicant was convicted on a permissible composite charge comprising housebreaking contrary to *Section 304(1)(b)* of the *Penal Code* and stealing from a dwelling house contrary to *Section 279(b)* of the *Penal Code.* The Respondent’s contention that the Applicant was convicted of stealing contrary to *Section 268* as read with *Section 275* of the *Penal Code* is therefore erroneous. 18. *Section 268* of the *Penal Code* is definitional. It sets out the circumstances in which a person is said to steal. *Section 275,* on the other hand, creates the general offence of theft and prescribes a punishment of imprisonment for three years, unless the circumstances of the theft or the nature of the thing stolen attract another punishment. 19. The offence of stealing from a dwelling house under *Section 279(b)* is, however, a distinct statutory offence carrying a maximum sentence of fourteen years imprisonment. 20. Similarly, *Section 304(1)(b)* of the *Penal Code* creates the offence of housebreaking. The provision is attracted where a person breaks and enters, or breaks out of, a building used as a human dwelling, with intent to commit a felony therein, or having committed a felony therein. 21. The offence is therefore concerned with the unlawful breaking into or out of a dwelling house accompanied by the requisite criminal intent and is distinct from the separate offence of stealing from a dwelling house under *Section 279(b)* of the *Penal Code,* as well as from simple theft under *Section 275* of the *Penal Code.* The maximum sentence prescribed for the offence under *Section 304(1)(b)* is seven years imprisonment. 22. It follows that the Respondent’s submission that the four-year sentence was illegal merely because it exceeded the three-year maximum under *Section 275* of the *Penal Code* cannot be sustained. The Applicant was not convicted of simple theft under *Section 275.* The statutory maximum of three years under that *Section* is consequently irrelevant to the legality of the sentence imposed for the offences disclosed by the lower court record. 23. The more fundamental question, however, is whether the sentence of four years imprisonment was imposed in respect of the two limbs of the composite charge. The answer is in the negative. 24. A composite charge such as the one before the Court contains two distinct offences: housebreaking under *Section 304(1)(b)* and stealing from a dwelling house under *Section 279(b).* Each offence carries its own statutory punishment. The sentencing court was therefore required to sentence the Applicant in respect of each limb of the composite charge and thereafter determine whether the sentences should run concurrently or consecutively in accordance with the applicable principles. 25. This position has been directly recognized by the High Court in ***Republic v Jared Moturi Mangate & Another [2018] KEHC 368 (KLR),*** where the Court considered a conviction on the composite charge of housebreaking contrary to *Section 304(1)(b)* and stealing contrary to *Section 279(b)* of the *Penal Code.* 26. The Court held that the trial court had erred in imposing a single sentence without sentencing the accused on each limb of the composite charge. The Court observed that housebreaking carries a maximum sentence of seven years while stealing under *Section 279(b)* of the *Penal Code* carries a maximum sentence of fourteen years, and set aside the sentence imposed by the trial court. 27. The same approach is reflected in the High Court’s decision in ***Kabugi v Republic [2026] KEHC 637 (KLR),*** in which the Court discussed the distinct statutory offences of housebreaking under *Section 304* and stealing in a dwelling house under *Section 279(b).* The decision underscores the importance of correctly identifying the statutory offence for which an accused person was charged and convicted before determining the legality of the sentence. 28. In the present matter, therefore, the question is not whether four years exceeded the maximum sentence of three years prescribed for simple theft under *Section 275* of the *Penal Code.* It did not, because *Section 275* was not the provision under which the Applicant was convicted. The issue is that the sentence imposed appears not to have been lawfully structured in respect of the two offences comprising the composite charge. 29. The sentence of four years, without a sentence being separately imposed on each limb of the composite charge, was therefore irregular and legally defective. 30. The first issue is consequently answered in the negative, though not for the reason advanced by the Respondent. The four year sentence cannot be upheld as a lawful sentence imposed on the composite conviction because the Applicant ought to have been sentenced separately on the offences of housebreaking under *Section 304(1)(b)* and stealing from a dwelling house under *Section 279(b)* of the Penal Code. 31. The second issue for me to address is whether the Court has powers, in exercise of its revisionary jurisdiction, to interfere with and vary the sentence imposed by the subordinate court 32. The revisionary jurisdiction of this Court is founded on *Sections 362* and *364* of the *Criminal Procedure Code. Section 362* empowers the High Court to call for and examine the record of criminal proceedings before a 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 the proceedings. *Section 364* empowers the High Court, in the case of a conviction, to exercise the powers conferred upon it as a court of appeal under *Sections 354, 357* and *358* of the *Criminal Procedure Code.* 33. Revisionary jurisdiction is therefore properly invoked where the Court identifies an error affecting the legality, correctness, propriety or regularity of the proceedings or sentence. It is not necessary for the Court to accept the precise legal reasoning advanced by the party seeking revision. Once the record discloses an illegality or material irregularity, the Court is entitled to make the order authorized by law to correct the defect. 34. The present case falls squarely within that jurisdiction. The lower court record discloses that the Applicant was convicted on a composite charge consisting of two separate statutory offences. The sentence, however, was not imposed separately on the two limbs of that conviction. The defect is therefore not merely an issue of the severity of the sentence. It goes to the legality and propriety of the sentencing process itself. 35. *Section 364(1)(a)* permits the High Court, in a case involving a conviction, to exercise the powers conferred upon it as a court of appeal under *Section 354* of the *Criminal Procedure Code.* Those powers include the power to alter the nature of the sentence and make consequential orders. The High Court may therefore intervene where the sentence imposed by the subordinate court is legally defective. 36. The Court must, however, exercise the jurisdiction with care. Revision is not intended to provide a general substitute for an appeal or to permit the Court to re-hear the entire case where no illegality, impropriety or irregularity has been demonstrated. In the present matter, the intervention is justified because the sentence imposed does not correspond properly with the composite conviction recorded on the lower court record. 37. The question then arises whether this Court should itself impose sentences on the two limbs of the composite charge or remit the matter to the subordinate court for sentencing. In my view, the latter course is preferable in the circumstances of this case. 38. The reason is that the Applicant has never been properly sentenced on the two offences of which he was convicted. The sentencing exercise contemplated by law has therefore not been properly undertaken. The appropriate sentence must be determined after considering the applicable sentencing principles, the circumstances of the commission of each offence, the value and recovery of the stolen property, the Applicant’s plea of guilty, his mitigation, his remorse, his personal circumstances, any previous criminal record and any other relevant aggravating or mitigating circumstances. 39. In addition, the question whether the sentences on the two limbs should run concurrently or consecutively is a matter that ought to be determined as part of a proper sentencing exercise. Where offences arise from the same transaction, the general principle is that concurrent sentences are ordinarily appropriate. 40. This Court should also be cautious not to transform a revision application into a sentencing hearing in circumstances where the Applicant was never properly sentenced on the two offences comprising the conviction. The defect is best cured by setting aside the defective sentence and directing the subordinate court to undertake the sentencing exercise afresh on the offences for which the Applicant was convicted. 41. This approach is consistent with the remedial jurisdiction available in criminal proceedings where the original sentencing exercise has not been properly undertaken. 42. I therefore find that this Court has jurisdiction under *Sections 362* and *364* of the *Criminal Procedure Code* to set aside the defective sentence and remit the matter to the subordinate court for proper sentencing on the two limbs of the composite conviction. 43. Although I have determined the preceding issues, which render the third issue spent, I will for completeness proceed to analyze and determine the issue. 44. The third issue is whether the Applicant has established a basis for the substitution of the custodial sentence with a non-custodial sentence. 45. The Applicant asks the Court to substitute the four-year custodial sentence with a non-custodial sentence, preferably probation or a community service order. He relies principally on his plea of guilty, remorse, the recovery of the stolen property, his family circumstances and his asserted prospects of reform. 46. The Applicant’s plea is not without merit as a matter of mitigation. A plea of guilty is ordinarily a relevant mitigating circumstance. So too are genuine remorse, recovery of stolen property, the absence of previous convictions where established and the possibility of rehabilitation. The Applicant’s family circumstances may also be considered, although they cannot, by themselves, determine the appropriate sentence. 47. However, the Court cannot properly determine whether the Applicant should receive a non-custodial sentence before the sentencing exercise is undertaken in respect of the actual offences for which he was convicted. The offence of housebreaking under *Section 304(1)(b)* of the *Penal Code* and the offence of stealing from a dwelling house under *Section 279(b)* are not simple theft under *Section 275*. 48. The Court must therefore consider the seriousness of the actual offences, the manner in which they were committed, the circumstances of the entry into the dwelling house, the value of the property stolen, the fact and extent of recovery, the Applicant’s criminal record and the applicable sentencing principles. 49. The Respondent’s argument that theft generally requires imprisonment in order to achieve deterrence and retribution is also too broad. Sentencing is an individualized exercise. A custodial sentence is not automatically required merely because the offence involves theft or property. The appropriate sentence must be proportionate to the offence and the offender, while taking into account the purposes of punishment and the need to protect the public. 50. At the same time, the Court cannot at this stage conclude that the Applicant is entitled to a non-custodial sentence. The sentence of four years has been set aside not because the Court has determined that the Applicant ought to receive probation or community service, but because the sentence was imposed without properly sentencing him on the two limbs of the composite conviction. 51. The Applicant will therefore have an opportunity to present his mitigation before the subordinate court during the fresh sentencing exercise. The prosecution will likewise be entitled to make submissions on the appropriate sentence. The subordinate court will then determine the appropriate sentence within the statutory framework applicable to the two offences and in accordance with the relevant sentencing principles. 52. The third issue is accordingly answered in the negative at this stage. The Applicant has not established a basis upon which this Court should itself substitute the defective sentence with a non-custodial sentence. That question is best determined by the subordinate court upon proper sentencing on the actual offences of conviction. 53. **What orders should then issue on the Applicant's motion?** In consequence of the foregoing findings, the orders of the Court are as follows: 1. **The Applicant’s application succeeds to the extent stated herein.** 2. **The sentence of four (4) years’ imprisonment imposed upon the Applicant by the Senior Principal Magistrate’s Court at Maseno in *Criminal Case No. E334 of 2024* is hereby set aside.** 3. **The matter is hereby remitted to the Senior Principal Magistrate’s Court at Maseno for the Applicant to be sentenced afresh on the offences for which he was convicted, namely housebreaking contrary to *Section 304(1)(b)* of the *Penal Code* and stealing from a dwelling house contrary to *Section 279(b)* of the *Penal Code.*** 4. **The subordinate court shall receive and consider the parties’ submissions on sentence and shall impose a lawful sentence on each limb of the composite charge, and determine whether the sentences shall run concurrently or consecutively.** 5. **The period already spent in custody shall be taken into account in accordance with *Section 333(2)* of the *Criminal Procedure Code.*** 6. **The Applicant shall be produced before the Senior Principal Magistrate’s Court at Maseno for the fresh sentencing exercise on 4th August, 2026.** 54. This file is 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.**