https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11964

JTM v Republic (Miscellaneous Criminal Application E097 of 2025) [2026] KEHC 11964 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11964 (KLR) Republic of Kenya In the High Court at Kiambu Miscellaneous Criminal Application E097 of 2025 B Mwamuye, J July 30, 2026 Between JTM Applicant and Republic Respondent Ruling 1.Before the Court is an undated Notice of Motion Application by which the Applicant, JTM, seeks that his remaining sentence for the offence of Incest contrary to Section 20(1) of the Sexual Offences Act which was imposed vide Gatundu SO Case No. 24 of 2016 be converted into a non-custodial sentence and that he be placed under probation. 2.The Applicant was sentenced to serve a sentence of thirty (30) years imprisonment on 15th November 2017. His Appeal, being Kiambu HCCRA E042 of 2021, was dismissed for lack of merit. 3.At Paragraph 3(g) of the Application, the Applicant states that thus far he has been in prison for about 9 years from the date of his arrest. 4.Parties filed and exchanged their respective documents, and the matter was heard on 23rd June 2026. 5.Ms. Caroline Muriu, Learned Prosecution Counsel, opposed the Application. She pointed out that the Applicant has not served a substantial part of his sentence and is thus ineligible for being placed on probation. 6.On his part, the Applicant urged the Court to interfere with the remainder of his sentence and either reduce the same or place him on probation. 7.Having heard the Parties and after considering the facts herein as applied against the Applicable law, I arrive at a two-fold finding. Firstly, the Application in terms of the Applicant being placed on probation is unmerited as the Applicant has not met the criteria in terms of time eligibility for the conversion of the remaining period of his sentence into a non-custodial sentence served under probation pursuant to Section 5 of the Probation of Offenders Act. 8.Secondly, this Court cannot further examine the question of the suitability of the length of the sentence imposed by the trial court as the same is res judicata in light of the Applicant having appealed against the same vide Kiambu HCCRA E042 of 2021. 9.The Applicant shall remain at liberty to re-apply, if he so wishes, once he becomes time eligible under Section 5(1) of the Probation of Offenders Act. 10.Orders accordingly, and file closed accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 30TH DAY OF JULY 2026……………………………………………………………BAHATI MWAMUYE MBSJUDGEDelivered in the presence of:Accused Present in Court virtually from Kamiti Maximum PrisonMs. Caroline Muriu – Prosecution CounselMr. Martin Mwenda - Court Assistant