https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8271

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL REVISION NO. E016 OF 2026** **JOHN MAINA NDIRANGU….…….…….…………...…….…… APPLICANT** **VERSUS** **REPUBLIC……………………………………….……….……. RESPONDENT** **RULING** 1. This is a Ruling over an application by the Applicant seeking to review sentence meted out against him in Karatina CMCR No. E214 of 2025 by Honourable E. Kanyiri (Principal Magistrate). The applicant was arrested on 15.06.2025 and arraigned in court on 16.06.2025. He admitted the offence and was accordingly convicted. He was charged with stealing contrary to section 268(1) as read with section 275 of the Penal Code. 2. The court sentenced the Applicant to three years imprisonment. The sentence for the offence for which he was charged, is provided in Section 275 as follows: Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years. 1. Consequently, the applicant was given the maximum sentence available in law. sentencing guidelines provide as follows: 4.3.6 Where courts are satisfied that it is safe to accept a plea of guilty, they should grant a discount after considering the appropriate sentence based on culpability and harm specific to the offence alongside other aggravating and mitigating features. Once the court has arrived at that sentence, a discount of up to one third of the sentence should be applied where the offender has pleaded guilty at the earliest opportunity. Thereafter, e.g., where an offender has pleaded guilty just before, or during trial, a lesser reduction may be afforded. 1. The plea of guilty thus entitled the applicant up to one third of the sentence, thus entitling him at most two years imprisonment. On the other hand, the applicant was indicated to have another matter that is E621 of 2023 for stealing farm produce. And was said to have been sentenced to one year. There was a matter allegedly withdrawn under section 204 of the criminal procedure code. This was said to be E622 of 2023. 2. The applicant answered that he was looking for food for the dog. Therefore, the applicant did not admit that there was a prior record. The state did not take procedure for confirming a prior conviction. A withdrawn case does not form a prior record. 3. Section 285 of the penal code provides for Stealing after previous conviction as follows: **If the offender, before committing the theft, had been convicted of a theft punishable under any of sections 275 to 284 inclusive, he is liable to imprisonment for seven years.** 1. Had the applicant been having a previous conviction, he was to be charged under section 285. He was not. Further, there was no certificate showing previous conviction. The file under which he was allegedly convicted was not availed. 2. The mode of proof of previous conviction is provided under section 142 of the criminal procedure code, which, provides as follows: * + 1. In any trial or other proceeding under this Code, a previous conviction may be proved, in addition to any other mode provided by any law for the time being in force- 3. By an extract certified, under the hand of the officer having the custody of the records of the court in which the conviction was had, to be a copy of the sentence or order; or 4. By a certificate signed by the officer in charge of the prison in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered, together with, in either case, evidence as to the identity of the accused person with the person so convicted. * + 1. A certificate in the form prescribed by the Cabinet Secretary given under the hand of an officer appointed by the Cabinet Secretary in that behalf, who has compared the finger prints of an accused person with the finger prints of a person previously convicted, shall be prima facie evidence of all facts therein set out if it is produced by the person who took the finger prints of the accused. 2. A previous conviction in a place outside Kenya may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order, and the finger prints, or photographs of the finger prints, of the person so convicted, together with evidence that the finger prints of the person so convicted are those of the accused person. 3. A certificate under this section shall be prima facie evidence of all facts stated therein without proof that the officer purporting to sign it did in fact sign it and was empowered so to do. 5. The said section was not complied with. Therefore, the applicant did not have a previous conviction under law. It is irrelevant if it exists in fact. 6. The issue is whether the sentence should be revised to a lesser one. Aggrieved the Applicant filed for revision of the sentence. In of the High Court of Malaysia in **Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735** it was stated as doth: “The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case” 1. The Supreme Court has propounded in the **Francis Karioko Muruatetu & Another v Republic (2017)eKLR**, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence: 2. Age of the offender; 3. Being a first offender; 4. Whether the offender pleaded guilty; 5. Character and record of the offender; 6. Commission of the offence in response to gender-based violence; 7. Remorsefulness of the offender; 8. The possibility of reform and social re-adaptation of the offender; 9. Any other factor that the court considers relevant. 10. The purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. The objectives of sentencing as set out in the 2023 Sentencing Guidelines are as follows: - “1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality. * + 1. Retribution: To punish the offender for their criminal conduct in a just manner. 2. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. 3. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. 4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. 5. Community Protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. 6. Denunciation: To clearly communicate the community’s condemnation of the criminal conduct. 7. Reconciliation: To mend the relationship between the offender, the victim and the community. 8. Reintegration: To facilitate the re-entry of the offender into the society” 1. The appellant was a first offender. This is notwithstanding the allegations by the prosecution by failing to comply with section 142 of the criminal procedure code. He stole goods worthy only Ksh. 3,000/=. He has been in custody for one year since 15.06.2025. The sentence is enough for the applicant. Determination 1. I therefore make the following orders: - 2. The application is merited and is accordingly allowed. The applicant’s sentence is reduced to the period served. The applicant shall be released unless otherwise lawfully held. 3. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **11th** day of **June**, the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Mr. Kihara for the State Applicant present Court Assistant – Martin