https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11654

Gachucha v Republic (Criminal Miscellaneous Application E237 of 2025) [2026] KEHC 11654 (KLR) (Crim) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 11654 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Miscellaneous Application E237 of 2025 AM Muteti, J July 17, 2026 Between Jackson Gachucha Applicant and Republic Respondent Ruling Introduction 1.The applicant in this matter alleges to be the son of the late Governor of Nyeri County H.E Nderitu Gahagua. The applicant was tried, convicted and sentenced to 20 years imprisonment in Milimani Chief Magistrates Court Criminal Case No 829 of 2019. The applicant appealed against the conviction and sentence and was heard vide High Court Criminal Appeal No. 59 of 2020 by the late Hon. Justice Ogembo who on the 24th May 2022 dismissed the appeal on both Conviction and sentence. 2.The applicant dissatisfied with the decision of Ogembo J moved to the Court of Appeal vide Criminal Appeal No E039 of 2023 and was heard by a bench of three Judges of Appeal P. O Kiage, Ali- Aroni and L. Achode and in a unanimous judgment delivered on 8th December 2023 the Court of Appeal upheld the decision of the High court and dismissed the appeal in its entirety. Notice of Motion and Submissions by the Applicant 3.The applicant moved this court vide a Notice of Motion expressed to be brought under Articles 22, 23, 25 (a), (c), (d), 27(1) (3)(4), 28, 50(2) (p) and 165(3) (6) of the Constitution of Kenya 2010, sections 216, 327(2), 264, 362, 329 of the Criminal Procedure Code, Section 296(2) of the Penal Code and Case Law. 4.The applicant sought several orders which are set out verbatim as hereunder;-a)That this Application be certified urgent and heard expeditiously.b)That this Hon. Court has jurisdiction to hear and determine this Application.c)That in sentencing the Applicant to twenty (20) years imprisonment the court considered all the factors that were before it. However, the Applicant has a right to ventilate any other issues which he considers having been left out and which remedies he is entitled to under the laws of the land.d)That in view of the averments in the foregoing paragraph, the Applicant humbly submits that modern jurisprudence has applied the requirements of Articles 27(1)(2)(4), 28, and 50(2) (p), Section 216 and 329 of the CPC as read with the Sentencing Policy Guidelines, 2023 and Case Law when re-sentencing those serving prison terms.e)That where sentencing powers properly lie has been the subject of intense debate in other jurisdictions such as the United Kingdom. The very recent case of Republic Vs Secretary of State for the Home Department (2001) EWCA CIV 1698, EX P Anderson, is the latest milestone in this debate. In reversing the lower decision of the Court of Appeal, the House of Lords held that sentencing powers are to lie with the courts and not the Crown. Underpinning this decision is article 6(1) of the European Convention of Human Rights (‘ECHR'), incorporated into the British domestic law via the Human Rights Act 1998.f)That the approach to sentencing is not complete unless and until a trial court directs its mind to the Bill of Rights in the Constitution as read with Section 333(2) of the Criminal Procedure Code on pretrial detention. The provisions of the code are tailored to effectuate the period spent in remand custody before an accused person's case has been heard and determined to finality. This provision is underpinned on the presumption of innocence enshrined in our Constitution that an accused person arraigned before a court of law is presumed innocent until proven guilty by the state. This right lies at the foundation of the administration of criminal justice. The Bill of Rights protects and guarantees the right to human dignity in Article 28 and to have that dignity respected and protected. In Article 29 of the same Constitution, every citizen enjoys the right to freedom and security which includes the right not to be deprived of freedom arbitrarily or without just cause.g)That this Honourable Court is requested to note that this Application is essentially a reply to the respondent's grounds of opposition.h)That the Applicant may have been late in replying to the Respondent's Notice of Motion on Preliminary Objection. The Applicant avers that the process was slowed. 5.The application was supported by the affidavit of Jackson Gachucha sworn on the 17th February 2026 in which the applicant has called upon this court consider the circumstances surrounding the offence, the mitigating factors and strike a proper balance by reviewing the sentence of 20 years imposed upon him by the trial court after a sentence review. 6.According to the applicant the trial court in sentencing him to a prison term of 20 years did not give effect to the provisions of Section 333(2) of the Criminal procedure Code thus this court should intervene and rectify the anomaly by making appropriate orders to have the period of 20 years computed from the date he was remanded on 29th May 2019. 7.The applicant further contended that he is rehabilitated and sought leniency from this court. 8.The applicant introduced other matters that he urged this court to consider vide an affidavit sworn on 22nd October 2025. 9.In particular the applicant averred that he is the son of the late Governor of Nyeri County Nderitu Gachagua and that he was basically framed by his uncle the former Deputy President of the Republic of Kenya H.E Rigathi Gachagua because of family disputes touching on his late father’s estate. 10.He went on to allege that as the biological son of the late Governor he was the custodian of crucial family documents relating to the estate thus this case was aimed at exerting pressure on him to surrender the documents. 11.His argument further was that after he refused to surrender the documents, he was charged and convicted under circumstances he believes were manipulated. 12.The applicant intimated to the court that he had tried to seek help from various government offices in vain thus his application to this court. Respondent’s Case 13.The application was opposed by the respondents through Mr Mogere Prosecution Counsel who argued that this court lacks jurisdiction to entertain the matter since the applicant had been heard by the lower court, the High Court and the Court of Appeal and that the sentence of 20 years having been confirmed by the Court of Appeal could not be reopened by this court without offending the principle of stare decisis which requires courts to be bound and respect the decisions of superior courts. 14.Counsel for the Prosecution submitted that the only entry point for a the High Court on the matter would be if the court finds that in the course of pronouncing the sentence there was omission to take into account the period the applicant had spent in custody prior to sentencing under Section 333(2) of the Criminal procedure Code since that would go into issues of fair trial under Article 50 of the Constitution. 15.The High Court under Article 165 (3) (b) of the Constitution would thus be entitled to act and regularize the position as a constitutional court. 16.The parties filed written submissions in respect of this matter and the court heard them in brief highlight of the same. This court has fully considered the application, the affidavits in support, the annextures thereto and the submissions. 17.The following issues arise for determination;-a)whether this court has the jurisdiction to entertain the applicationb)whether there are grounds for intervention by this court in the matter at this stage.c)whether section 333(2) of the Criminal Procedure Code was complied with during sentencing. Analysis and Determination 18.The High court just like all other courts draws its jurisdiction from Constitution and statute. The court cannot go beyond the jurisdiction conferred upon it by the law. 19.The threshold issue for determination in this matter is whether this court has jurisdiction under the law to consider the Amended Notice of Motion by the applicant. 20.The applicant has moved the court to consider revisiting the issue of sentence citing section 333(2) of the Criminal Procedure Code and Articles 22, 23, 25 (a), (c), (d), 27(1) (3)(4), 28, 50(2) (p) and 165(3) (6) of the Constitution of Kenya 2010 21.The High Court as rightly conceded by the prosecution counsel, can only entertain a sentence review application in the context of this matter if the record shows that the lower court, the High Court and the Court of Appeal did not consider the provisions of Section 333(2) of the criminal Procedure code since that would be a matter touching on the right to a fair trial which is an inalienable right to every accused person facing a criminal trial and cannot be limited. 22.The court cannot go beyond that scope because to do so, would be an exercise in futility for the law forbids courts from acting in excess of their jurisdiction. In Owners of Motor Vessel “Lillians” Vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 the Court of Appeal stated :-“Where a court takes upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 23.This court cannot review a decision of the Court of Appeal because courts below the Court of Appeal must defer to the authority of that court. However, the applicant in the instant case has argued that the sentencing court was the Principal Magistrate’s Court which this court has authority to supervise and can intervene to correct any errors committed by that court in sentencing.Thus this court has jurisdiction to intervene in the matter to that extent. 24.The court has taken time to peruse the lower court record to ascertain whether indeed there was an error of law committed by the trial court by failing to apply the provisions of Section 333 (2) of the Criminal Procedure Code. 25.The sentencing notes by the learned Honorable Magistrate read as follows;-“SentenceThe court has considered the mitigation by the accused and noted that he has no previous records. I have also looked at the pre-sentence report dated has 2th April, 2020 which is favorable to the accused. I have also considered the circumstances of the offence and noted that no one was injured. I have also taken into account that this victims Motor vehicle was recovered.Guided by the Sentencing Policy Guidelines and the purpose of sentencing which include the punishment of the offender, rehabilitation, justice for victim and protection of the society, I hereby sentence the accused to 20 years imprisonment, the sentence to be from the date of remand as the accused has been in remand from 29th May, 2019 after plea. Right of appeal within 14 days explained.’’ 26.A reading of that excerpt of the record reveals that the trial magistrate in sentencing the accused/ applicant complied with the provisions of Section 333 (2) of the Criminal Procedure Code and imposed a sentence that was legal and manifestly lenient. The court did not therefore err in any manner and as such this court does not find any illegality, incorrectness or irregularity in the sentencing order to justify the invocation of the High Court’s supervisory jurisdiction under Article 165 of the Constitution. 27.The sentence was upheld by the High Court and the Court of Appeal. The trial magistrate having complied with the law under Section 333(2) cannot be faulted because the offence with which the accused was charged with attracted a maximum sentence of death. 28.The applicant should forever remain grateful to the judicial officer for giving him a sentence that was proportionate considering that the victim of the robbery was not injured in the course of the robbery, and that the subject motor vehicle was recovered. 29.The trial Magistrate could as well have imposed a heavier penalty since all the ingredients of the offence of robbery with violence were established. The court therefore finds that there is no irregularity, illegality, incorrectness or impropriety in the sentencing order to warrant a revision of the same. 30.Sentencing is a matter of exercise of judicial discretion. This Court must be reluctant to interfere in the exercise of judicial discretion by the Lower Court unless it is convinced that doing so would be in furtherance of the administration of justice. This principle was clearly stated by the Court of appeal in Mbogo v. Shah (1968) EA 93 thus: -“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice. 31.The applicant has been to this court before and the Court of Appeal. He cannot be allowed to saddle the courts with endless applications on the issue of sentence yet the courts have heard him on the issue through the various court pronouncements. For him to cunningly return to this court introducing facts that are completely unrelated to the issue of sentence is to seek to commit this court’s scarce resources into inquiring into what clearly are irrelevant matters divorced from honest and sincere quest for justice. 32.The applicant alluded to family disputes that he says may have led to his arrest and incarceration. This court without delving into such matters, notes that the robbery which was the subject of the trial happened on 24th April 2015 at Kobil Langata Road Nairobi and at the time the father of the appellant was alive and there was no succession to think about. The court therefore wonders how the uncle of the appellant would have imagined the death of the applicant’s father and sourced a complainant to lodge a complaint with the police in order to have the applicant put behind bars. The claim by the applicant is to say the least purely imaginative pure concoction of untruths. 33.The applicant told this court that his father died in 2017 thus this court cannot find any merit in the belated argument by the applicant that he was framed in an attempt to coerce him to surrender documents relating to his father’s estate. 34.The plea in the lower court was taken on the 29th May 2019 before Chief Magistrate Hon. M Mutuku (as she then was) and no issues were raised on the propriety of the charges before the plea court and the Hon B. Ochoi SPM who tried the matter. 35.It is the view of this court that all the issues being raised by the applicant now are an afterthought. The applicant had the opportunity during trial and the appellate stages to raise those matters but he did not do so. 36.The instant application is thus calculated at drawing sympathy from this court and have the court extend mercy to him but this being a court of law however strong the invitation by the applicant be, the court cannot veer into irrelevancies to accommodate the wishes of the applicant. 37.The application in this court’s view, borders on abuse of process as observed by the Supreme Court in the case of Kenya Section of the International Commission of Jurists v Attorney-General and 2 others [2012] eKLR, where the court aptly stated :- reasonable cause of action and is so weak as to be beyond redemption...” [D. T. Dobbie & Company (Kenya) Ltd. V. Muchina [1982] KLR 1 – per Madan, JA at p.9]. Beyond that threshold, lies an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.” (Emphasis added)The bottom line in the case of abuse of Court process is that, it “appears so hopeless that it plainly and obviously discloses no“The concept of “abuse of the process of the Court: bears no fixed meaning, but has to do with the motives behind the guilty party’s actions: and with a perceived attempt to maneuver the Court’s jurisdiction in a manner incompatible with the goals of justice. 38.The instant application has no legal or factual basis thus it fits within the description set out above by the supreme court. The application is plainly hopeless and discloses no reasonable cause of action since the trial court acted within the law. If the applicant feels that the sentence is excessive then the High Court is not the forum for the court has already pronounced itself on that matter and so is the Court of Appeal. 39.The Amended Notice of Motion is thus found to be without merit and the order that commends itself is an order for dismissal of the application in its entirety. 40.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JUNE 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaApplicant in personMogere for Respondent