https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12484

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **HCCRREV APPLICATION NO. E032 OF 2026** **AND** **IN THE MATTER OF: ARTICLE 50(2)(p) AND (q) OF THE CONSTITUTION** **AND** **IN THE MATTER OF: AN APPLICATION FOR A COMMUNITY SERVICE ORDER FOR THE REMAINING PERIOD OF SENTENCE** **AND** **IN THE MATTER OF: SECTION 3(1), (2), (3) AND (5) OF THE COMMUNITY SERVICE ORDERS ACT** **AND** **IN THE MATTER OF: ARTICLES 22(3), 23(3), 27(1), 35 AND 159 OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE DECONGESTION EXERCISE MEMO** **BETWEEN** **HENRY MWELU WASILWA ………………………………...APPLICANT** **VERSUS** **REPUBLIC …………………………………………………...RESPONDENT** **RULING** 1. By way of a Chambers Summons brought under **Article 50(2)(p) and (q) of the Constitution, Section 3(1), (2), (3) and (5) of the Community Service Orders Act, Articles 22(3), 23(3), 27(1), 35 and 159 of the Constitution**, and further premised on the Judiciary's Decongestion Exercise Memo, the Applicant, Henry Mwelu Wasilwa sought orders; 2. **Spent.** 3. **Spent.** 4. **Spent.** 5. **That any other order the Court deems appropriate in the circumstances be granted.** 6. The Application is supported by the affidavit of the Applicant, in which he averred that he was charged with and convicted of the offence of manslaughter and sentenced to serve a term of seven (7) years' imprisonment. He also stated that he has no interest in pursuing his right of appeal, that he has a paramount place of abode, and that he is not a flight risk. 7. Furthermore, he expressed his willingness to abide by all terms and conditions that may be set by this Honourable Court. Additionally, he maintained that the Constitution enjoins courts to lean towards granting, rather than derogating from, the rights enshrined in the Bill of Rights. 8. When the matter came up for hearing on 23rd July 2026, learned counsel for the State/Prosecution raised no objection to the Application. The Applicant, in turn, informed the Court that he had been sentenced to seven (7) years' imprisonment and that, according to his own account, he had approximately three (3) months remaining to serve to complete his sentence. 9. To ascertain the accurate status and ensure appropriate guidance, the Court ordered the preparation of a Probation Officer's Report and a Prison Officer's Report concerning the Applicant's remaining sentence, which were subsequently submitted to the Court. 10. The Probation Report, prepared by the Probation and Community Service Officer at Bungoma Station, confirms that the Applicant is 45 years of age and was convicted in **HCCR No. 32 of 2019** of the offence of manslaughter, arising from an incident on the night of 8th/9th September 2019 at Mayanja Kibuke village, Bumula Sub-County. 11. The Report indicates that the Applicant was sentenced to seven (7) years of imprisonment and, as of the date of the Report's preparation, has served a significant portion of this sentence, with a limited period remaining. 12. Regarding his personal and family circumstances, the Report states that the Applicant is the youngest of seven children. His late father was a retired primary school teacher, and his mother is a retired educator. His siblings occupy various professional roles, including positions as head teachers and an employee of a non-governmental organization. 13. Furthermore, the Report reveals that the Applicant previously trained and served as a primary school teacher prior to his conviction. Additionally, he suffers from arthritis, a chronic condition that necessitates ongoing medication and which occasionally causes him pain. The Court on its part did observe that when the Applicant appeared before it, he was using the aid of crutches. 14. Regarding the attitude of the victim's family, the Report states that the deceased's parents are deceased, and that the family's views were represented by the victim's paternal uncle. He informed the Probation Officer that the family has since moved on from the unfortunate incident, believes that the Applicant has gained valuable lessons during his incarceration, and has raised no objection to his consideration for a non-custodial sentence. 15. The Applicant's own family, through his brother, indicated that they are fully prepared to welcome him back home and to provide the necessary emotional and social support for his successful reintegration. Additionally, members of the local community reported that the Applicant maintained a good reputation prior to the offence, was recognized as a first-time offender, and expressed no objection to his release on a non-custodial sentence. 16. On his conduct and rehabilitation during detention, the Report indicates that the Applicant has made commendable efforts towards rehabilitation, having successfully completed five theology courses and acquired practical skills in soap-making. Additionally, prison authorities confirm that he has maintained good discipline throughout his incarceration without any disciplinary offences. 17. The Applicant is reported to have expressed genuine remorse, accepted responsibility for the circumstances that resulted in his conviction, and pleaded with the Court to consider a non-custodial sentence. The Probation Officer, considering the strong family support, positive community acceptance, reconciliation and forgiveness extended by the victim's family, and the Applicant's demonstrated positive rehabilitation, has formed the considered opinion that the Applicant is a suitable candidate for a review of his sentence. 18. The Prison Officer's Report that was availed to court, stated that the Applicant was sentenced on the 21st of June 2022, to a term of seven (7) years' imprisonment, with no remand period to be subtracted. The correspondence further corroborates that the Applicant has, during his incarceration, exhibited exemplary conduct and is eligible for the standard one-third (1/3) remission under **Section 46 of the Prisons Act, Cap 90**, subject to the confirmation of this Court. 19. That based on this calculation, the complete term of the sentence without remission would conclude on the 21st of June 2029. However, with the application of the one-third remission of two (2) years and four (4) months, the effective period of incarceration would be reduced to four (4) years and eight (8) months, expiring on the 21st of February 2027. As of the 24th of July 2026, the Applicant has served four (4) years, one (1) month, and three (3) days of his sentence, leaving a remaining period of five (5) months and twenty-seven (27) days. **Determination** 1. I have carefully considered the Application submitted by the Applicant, along with the Probation Report and the Prison Officer's Report concerning sentence balance. The issue that falls for determination is: 2. **whether, in light of the material now before the Court, the sentence imposed upon the Applicant in HCCR No. 32 of 2019 merits review under Article 50(2)(p) and (q) of the Constitution and the Community Service Orders Act, and if so, what order this Court ought to make in the circumstances.** 3. **Article 50(2)(q) of the Constitution** guarantees every accused person the right, if convicted, to appeal to or apply for review by a higher court as prescribed by law, while **Article 50(2)(p)** guarantees the benefit of the least severe of the prescribed punishments where the same has changed between commission of the offence and sentencing. 4. Read together with **Articles 22(3), 23(3), 27(1), 35 and 159 of the Constitution, and Section 3 of the Community Service Orders Act**, this Court retains jurisdiction to review a custodial sentence and to convert the same, wholly or in part, into a non-custodial order, or otherwise to make such order as the justice of the case demands. 5. In the present case, I have reviewed a positive and comprehensive Probation Report, which affirms that the Applicant, despite the severity of the manslaughter conviction, has shown sincere remorse, maintained exemplary conduct throughout his incarceration without any disciplinary violations, completed theological and vocational training, and enjoys unequivocal support from his family and community. Notably, the victim's own family, through the deceased's paternal uncle, has expressed reconciliation and forgiveness towards the Applicant and has raised no objection to his consideration for a non-custodial sentence. 6. I have also considered the Applicant's health condition, as confirmed by both the Probation Report and the court's own observation. Additionally, I have reviewed the sentence-balance computation provided by the Officer in Charge at Bungoma Main Prison, which, after applying the statutory one-third remission for good conduct, verifies that as of 24th July 2026, the Applicant has only five (5) months and twenty-seven (27) days remaining before the effective completion of his sentence on 21st February 2027. 7. Having carefully addressed my mind to all the above, I am satisfied that this case warrants the exercise of the court's discretionary powers under **Article 50(2)(p) and (q) of the Constitution, in conjunction with the Community Service Orders Act**, to review and potentially amend the sentence. In this regard, I find merit in the Application and the same is hereby allowed in the following terms; 8. The sentence of seven (7) years' imprisonment imposed upon the Applicant, Henry Mwelu Wasilwa, in **HCCR No. 32 of 2019**, is hereby reviewed. The Applicant's sentence is hereby commuted to the period already served, and he shall accordingly be set at liberty forthwith, unless otherwise lawfully held. **Read, Dated and Signed at BUNGOMA on 30th July 2026.** **E. OMINDE** **JUDGE**