https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9500

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **MISC. CRIMINAL APPLICATION NO. E059 OF 2025** **GITONGA NJAGI……………….. ...................APPLICANT** **VERSUS** **REPUBLIC……………………………….........RESPONDENT** **R U L I N G** 1. The Applicant was charged with being in possession of Forest produce without licence from Kenya Forest Service Director contrary to section 64(1) (a) as read with section 64(2) of Forest Conservation and Management Act No. 34 of 2016. 2. Upon trial, the court convicted and sentenced Applicant to 3 years’ imprisonment effective 12th June 2025. In sentencing the Accused, the court noted that the Accused was a repeat offender and had destroyed an endangered forest produce. 3. The Applicant has now filed the present Application seeking a review of his sentence. 4. The Applicant stated in the supporting affidavit that he was remorseful and transformed; that he was a family man and bread winner of his family. He prayed for revision of his sentence from imprisonment to a fine. 5. The Applicant’s undated submissions, mirror the averments in his supporting affidavit. 6. The Respondent did not respond to the Application. 7. This court’s revisionary jurisdiction is provided in section 362:- **“362. The High Court may call for and examine the record of any criminal proceedings before any 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 any proceedings of any such subordinate court.”** 1. I called for and examined the trial records. It shows that the Applicant was tried and convicted by Hon. Gandani (then C.M). The trial court stated that it had noted his mitigation. It is clear to this court that what weighed in on the sentence was the fact that the accused was a repeat offender. He had been convicted in Criminal Case No. E464 of 2021 where he paid a fine of Kshs. 100,000/- on 2nd August 2021 and also MCCR/E351/2023 where he paid a fine of Kshs.10,000/- 2. Section 64(2) of the Forest Conservation and Management Act provides:- **“64(2) Any person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.”** 1. The sentence meted on the Applicant was lenient in the circumstances of his being a repeat offender. 2. The Applicant has asked this court to vary the nature of his sentence and impose a fine. While this court has power to do so under section 354 of the Criminal Procedure Code, such power must be exercised judiciously. It would be injudicious to impose a fine just because the Applicant was capable of paying fine. His antecedents work against his prayer for a fine. 3. The Sentencing Policy Guidelines guides on when to impose prison or non-custodial sentences as follows:- [7.19.2]*“Where the option of a fine is provided, the court must first consider it before proceeding to impose a custodial sentence. If, in the circumstance a fine is not a suitable sentence, then the court should expressly indicate so as it proceeds to impose the available option.”* 1. In the end, the Application has no merit and is dismissed. The Appellant shall continue to serve the sentence as imposed by the trial court. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 25th day of June, 2026.** **..........................** **R. LAGAT - KORIR** **JUDGE** **Ruling delivered in the presence of Applicant acting in person, Ms. Gakumu for the Republic. Muriuki (Court Assistant.)**