https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7675

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CRIMINAL REVISION E029 OF 2025** **JOHNSON MUGO IRUNGU………..…….……….………1ST APPLICANT** **EPHASNTUS IRUNGU NJERI……………………………2ND APPLICANT** **VERSUS** **REPUBLIC………………………..……………………………RESPONDENT** **RULING** 1. The applicants, Johnson Mugo Irungu and Ephantus Irungu Njeri filed undated Notice of Motion Application through the Prison authorities seeking review of their sentence imposed by the lower court in Murang’a Chief Magistrates Court in **Criminal Case No E121 of 2025.** 2. A perusal of the trial court record reveals that the applicants were convicted of stealing contrary to **section 268(1) as read with Section 275 of the Penal Code** and were each sentenced to serve a term of three (3) years imprisonment on 10th March 2025. 3. The applicants now seek a revision of that sentence and pray that the court may consider a non-custodial sentence. The application is premised on the grounds stated on the face of the application and on the depositions made in the supporting affidavit sworn by the 1st applicant in which he deposes that the respondent is bound by the provisions of the constitution and the written law; that the applicant has a constitutional right under **Article 47 and 48 of the Constitution 2010**, to fair administrative action and access to justice; and that the court has jurisdiction in the interest of justice under **Section 362 of the Criminal Procedure Code** to review the sentence to reflect the requirement of the law. 4. He avers further that he has been a first offender, has been rehabilitated during the period he has already served in prison and that he is a bread winner and desires a non-custodial sentence in order to attend to his family. 5. The application was opposed by Mr. Mwakio, learned prosecution counsel for the Respondent. In his brief oral submissions before this court, Counsel Mwangi submitted that the offence with which the accused was charged provides for a sentence of three (3) years. That the sentence of three (3) years imprisonment passed was fair and just, and the same should not be disturbed by this court. 6. Counsel submitted further that the court passed the sentence having taken into account several factors including the fact that the Applicants were repeat offenders. The court was therefore urged to dismiss the application and that the Applicants should serve the remaining part of the sentence. 7. I have considered the application, the brief oral submissions made by the learned prosecution counsel in opposition of the application, together with the records of the trial court, and I find that this application invokes the revisional jurisdiction of this court as provided for under **Section 362 of the Criminal Procedure Code.** 8. Section 362 of the Criminal Procedure Code stipulates thus: ***“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. It is a well settled principle of law, that sentencing is at the discretion of the trial court, and an appellate court can only interfere with this discretion when it is satisfied that the trial court while sentencing the accused, acted upon wrong principles, overlooked some material factors or that the sentence was manifestly excessive in view of the circumstances of the case. 2. This principle was reiterated by the Court of Appeal in the case of **Macharia v Republic (2003) KLR 115-118**as follows: ***“The principle upon which this court will act in exercising its jurisdiction to review or alter a sentence imposed by the trial court have been firmly settled as far back as 1954, in the case of Ogalo s/o Owuor (1954) EACA at page 270, wherein the predecessor of this court stated: “the court does not alter a sentence on mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James vs.R, (1950) 18 EACA 147 “it is evident that the judge has acted upon some material factors” to this we would also add third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case: R v Shershewsky (1912) CCA 28 TLR 364.”*** 1. Having stated ass above, the offence of stealing contrary to **Section 268(1) as read with section 275 of the Penal Code** provides for a sentence of three years imprisonment and that was what the trial court passed. 1. In this case, the learned trial magistrate considered all the circumstances of the case, including the fact that the applicants were repeat offenders and had absconded non-custodial sentence previously. The court proceeded to sentence each of them to a term of three (3) years which was within the law. I therefore do not find any need to interfere with the sentence imposed by the court, as the same is just, lenient and fair. 2. Furthermore, the applicants have not demonstrated that the learned trial magistrate while sentencing him, applied the wrong principles, considered some irrelevant factors or that the sentence imposed was manifestly excessive given the circumstances of the case. 3. I have also taken into account the presentence reports dated 10th March 2025 by the Probation Officer to the trial court prior to the sentencing which was not favorable to both the Applicants. The reports described each of the applicants as repeat offenders with issues of drug abuse. In addition, the 1st Applicant was found with no fixed abode and as such they were found to be unsuitable for non-custodial sentence. 4. ***Based on the above, I find that the application lacks merit and is hereby dismissed***. **Dated, Signed and Delivered Virtually on this 4th day of June, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Mwakio for State/Respondent Applicants both present at Mwea Prison. Nyabuto – Court Assistant