https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12334

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **MISCELLANEOUS CRIMINAL APPLICATION NO E072 OF 2024** **GEOFREY AMWAYI OMBEVA.……………….…………………………….APPLICANT** **VERSUS** **REPUBLIC………………………………………………………….…………RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant herein was charged with the offence of maim**(sic)** contrary to Section 234 of the Penal Code Cap 63 (Laws of Kenya) and he was convicted and sentenced to ten (10) years imprisonment. 2. He appealed to the High Court vide **Kakamega High Court Criminal Appeal No 30 of 2019** but his Appeal was dismissed. He lodged a second appeal to the Court of Appeal vide **Kisumu Court of Appeal Criminal Appeal No E237 of 2022** but he withdrew the same. 3. On 1st July 2024, he filed an undated Notice of Motion application seeking to be placed on probation pursuant to Section 4(1) of Probation of Offenders Act and Community Service Order Act. In his said application that was supported by his Affidavit, he averred that he had rehabilitated in general character, spiritually and that he was ready to join the community. 4. His Written Submissions were dated and filed on 23rd June 2025 while those of the Respondents were dated and filed on 3rd November 2025. The Ruling herein was therefore based on the said Written Submissions which both parties relied upon in their entirety. **LEGAL ANALYSIS** 1. The Applicant submitted asked this court to substitute his sentence ten (10) years imprisonment with a least prescribed sentence. He averred that he was a first time offender and remorseful. He added that he had served more than five (5) years in prison, that he was the sole breadwinner and that he left young children of tender age. He contended that the long incarceration would lead to poverty and poor morals to his children. He implored the court to consider imposition of a fine which was manageable. 2. He pointed out that he had served sufficient time to meet the requirement of punishment, deterrence and rehabilitation which had transformed him. He stated that he had obtained certificates in various courses including Theology, Biblical courses and soap making. He pointed out that he had no issue with his fellow inmates and the Prison department. 3. He invoked Article 50(2)(p) of the Constitution and stated that this court had power to reduce the current sentence to least prescribed sentence or a fine. He also pointed out that he was not accorded an advocate nor informed of the same during trial. 4. This court considered the Applicant’s present application, the recommendation letter from SP Nelson Mogaka, Officer in Charge Kisumu Medium Prison, the Certificates the Applicant had attained in various courses and the Probation Report dated 7th November 2025 and filed on 14th November 2025 which was favourable. 5. Notably, the records from the High Court Kakamega and Court of Appeal Kisumu were not placed before this court. This court nonetheless took the liberty to peruse **HCCRA No 30 of 2019 Ombeva v Republic [2022] KEHC 10406 (KLR)**in the Kenya Law Reports Website to acquaint itself with the decision therein. 6. This court noted that the High Court in Kakamega considered the issue of sentence at length and while upholding the sentence, Musyoka J rendered himself as follows:- **“36. The seventh ground is on the sentence being too harsh. It is submitted that the trial court should have considered a lesser sentence, even non-custodial. It is submitted that the court noted that the incident was occasioned by differences between the parties, it occurred within the business premises of the appellant and there was no malice aforethought. The charge that the appellant faced, was convicted of and sentenced in respect of was brought under section 234 of the Penal Code. The penalty for that offence is life imprisonment. The court awarded ten years imprisonment…..In sentencing what is considered is the seriousness of the harm or danger caused. Section 234 ids about injury. The injury inflicted on PW1 affected his brain. He lost consciousness. He was in hospital for about twelve days. A head injury which causes loss of consciousness and hospitalization for nearly two weeks would be a serious one.** **37.Am told the sentence was excessive. As indicated above, the maximum penalty is life in jail. The appellant got ten years. The injury inflicted was serious, life threatening, and the sentence imposed was not unreasonable. Should the trial court have considered the matters raised by the appellant as extenuating circumstances? The prosecution described him as a first offender. The appellant mitigated that he was employed, had a wife who was in hospital, and children depending on him. The court noted that the appellant was a first offender, the offence was serious, PW1 was a minor, he suffered life threatening injuries, the appellant was an adult who should have known how to settle any differences, and the court had an obligation to protect minors. The appellant did not raise any of the issues, that he is now raising, in his mitigation.** **………..** **41.Overall, I am not persuaded that the trial court mishandled the sentencing process. It took into account all what needed to be taken into account in assessing sentence. The offence was serious. It was not justified. The victim was a minor. The seriousness of it militated against consideration of any non-custodial sentence.** 1. Despite the Respondent not being opposed to the said application and the fact that the Probation Report was positive. This court note that Musyoka J considered the severity of sentence and the mitigation the Applicant proffered before the Trial Court. As the learned judge was a judge of equal and competent jurisdiction as this court, this court could not therefore disturb his decision as doing so would be tantamount to sitting on his appeal which was prohibited by the law. The only remedy that was open to the Applicant herein was to seek appropriate redress from the Court of Appeal. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s undated Notice of Motion application that was filed on 1st July 2024 was not merited and the same be and is hereby dismissed. 2. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **27th** day of **July** 2026 **J. KAMAU** **JUDGE**