Ngure v Republic (Criminal Revision E012 of 2026) [2026] KEHC 8714 (KLR) (18 June 2026) (Ruling)

Ngure v Republic (Criminal Revision E012 of 2026) [2026] KEHC 8714 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8714 (KLR) Republic of Kenya In the High Court at Thika Criminal Revision E012 of 2026 LN Mugambi, J June 18, 2026 Between Kelvin Macharia Ngure Applicant and Republic Respondent Ruling 1.The undated Notice of Motion Application of the Applicant is supported by his own affidavit sworn on 26th February, 2026. 2.The main reliefs sought in the Application are as follows:a.That this Court be pleased to call for the records and review the sentence meted on the Applicantb.That this Court be pleased to issue any such further order, directions and/or reliefs it may deem fit, just and reasonable in the circumstances of this case. 3.The Applicant, an inmate at Thika Main Prison swore that he is currently serving a three-year sentence starting from 09/02/2026, the date of his conviction by the trial Court for the offence of being in possession of narcotics and psychotropic substances (cannabis sativa). He states that he pleaded guilty on 09/02/2026 having been arrested on 12/01/2026. 4.The Applicant deposes that the sentence imposed on his own plea of guilty by the Court is excessive and manifestly harsh considering he is a first offender and the fact that he pleaded guilty and saved court’s time. He states that Court should have at least been given the benefit of a fine. Further, the Applicant contends that this Court should take into account the provisions of Section 332 (2) of the Criminal Procedure Code in regard to the time he had spent in remand which was from the date of his arrest until the date he was sentenced. 5.Further contends in view of the severe overcrowding in the prisons which poses the risk of communicable and skin diseases, he can benefit from the Court enabled decongestion programme. 6.When the matter came up for hearing on 20/4/2026, Ms. Koech who appeared for the State briefly submitted as follows:“I have been served with the Application by the Applicant. We would not put a response. The Application is seeking review of the Sentence under Section 333 (2) of the Criminal Procedure Code and our submission it was not taken into account. On page 4, the Court did not pronounce itself on the time served in custody. We are conceding right away, that the Court did not consider that in the sentencing” Analysis and Determination 7.The Application raises two fundamental issues:a.Whether the Trial Court failed to apply the provisions of Section 333 (2) of the Criminal Procedure Code when it sentenced the Applicantb.Whether the Sentence imposed upon the Applicant is manifestly excessive to warrant review by this Honourable Court. 8.On the first issue, the State conceded that that the Trial Court did take into account the period the Applicant spent in custody prior to the sentence. An examination of the Trial Court record confirms this position. In sentencing the Applicant on 9th February, 2026, Hon L. Mutai, Chief Magistrate, Chief Magistrate pronounced the sentence as follows:“The accused mitigation considered. Accused is a first offender. The offence is more serious, it is a concern to the society and some deterrent is called for. Accused sentences to serve 3 years imprisonment.” 9.Evidently, the Court did not address it mind on period that the Applicant had been in custody prior to imposing the said sentence upon him.The proviso to Section 333(2) of the Criminal procedure Code provides as follows:“Provided where the person sentenced under sub-section (1) has prior to such sentence, been held in custody, the sentence shall take into account the period spent in custody” 10.The proviso to Section 333(2) is an exception to the general rule that every sentence shall be deemed to commence on the date it is pronounced as provided at the onset of section 333(2). 11.This aspect of the Application thus succeeds. 12.The second issue is on the extremeness of the sentence imposed by the Trial Court on the Applicant. The Applicant argues that the sentence is manifestly excessive and disproportionate and thus wants this Court to examine and review the same. 13.The power of revision is granted under Section 362-364 of the Criminal Procedure Code to the High Court. 14.This power finds constitutional anchor in Article 165(6) and 165(7) of the Constitution which provide as follows:Article 165 (6) –The High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over superior court.Article 165 (7)For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. (Emphasis added). 15.Section 362 of the Criminal Procedure Code gives effect to the supervisory role by providing that:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for purposes of satisfying itself as to correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings in any such court.” 16.Section 364 of the Criminal Procedure Code provides for the powers of the High on revision. It states:Powers of High Court on revision(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. 17.The apparent tension between Sub-section 5 of Section 364 of the Criminal Procedure Code and section 165(7) scrutiny deserves which provides that:-‘When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed’ and Article 165 (7) of the Constitution which provides thus- ‘For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice’ deserves some interrogation if only to circumspect the power of this Court in revision. 18.On the face of it, Section 364 (5) of the Criminal Procedure Code appears to limit the right of a Party to seek revision where the party has a right of appeal against the sentence or order but fails to exercise that right and instead opts to file a revision. In simple terms, it implies if you do let the avenue of appeal bolt, you cannot resort to revision. Section 364 (5) is trained on procedural conduct of a Party while the Constitutional approach is about substantive justice by enabling the High Court to intervene where the interests of justice are at risk. 19.For instance, in the instant case, the Applicant pleaded guilty before the Trial Court which therefore, reading Section 348 of the Criminal Procedure Code gives him the limited right of appeal against sentence as it states:348.No appeal on plea of guilty, nor in petty casesNo appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence. 20.If the above reasoning were to be accepted, it would thus imply that since therefore the Applicant has had a right to appeal the excessiveness of the sentence that is expressly granted by Section 348 of the Criminal Procedure Code, then he cannot approach this Court to review his sentence by way of revision. 21.Such an interpretation is untenable in light of Article 165 (6) and 165 (7) of the Constitution. It will be tantamount to elevating a statutory provision above the Constitutional provision and a limitation of the jurisdiction of this Honourable Court which under Article 165 (7) confers the High Court with expansive powers in revision in which it ‘may make any order or give any direction it considers appropriate to ensure the fair administration of justice’ 22.Section 364 (5) the Criminal Procedure Code must thus be applied in conformity with the Constitution in particular Article 2 (4) where all other laws are subordinate to the Constitution and also, Article 159 (2) (c) which gives this Court the power to administer justice without undue regard to procedural technicalities. Where exceptional circumstances demonstrate an apparent need for the High Court to intervene in the interest of justice of the matter, this Court will not shy away from taking up that role as its power of revision derives from the Constitution itself. 23.An excessively disproportionate sentence that the Court finds violates the sentencing guidelines and thus is manifestly unjust will not be allowed to stand cann just because the Applicant did not approach the Court by way of an Appeal. To take that route is akin to this Court condoning a miscarriage of justice by failing to exercise its supervisory powers. 24.I am fortified in the above reasoning by the case of the DPP v Jackson Cherono [2019] KEHC 8290 (KLR) where the Court held thus:“ 14.I respectfully agree with Odunga, J in Director of Public Prosecutions v. Samuel Kimuchu & Anor. [2012] eKLR that the revisionary power exists in interlocutory and final orders, when he held that-“From the foregoing it is clear that the High Court cannot exercise revisional jurisdiction in an order of acquittal. It may however exercise the said jurisdiction in case of a conviction or in any other order. Accordingly, I join Ochieng, J. in Livingstone Maina Ngare’s Case (supra) in holding that the High Court should exercise its jurisdiction if satisfied that any finding, sentence or order recorded or passed; or the regularity of any proceedings of any court subordinate to the High Court, did not meet the required standards of correctness, legality and propriety.” 15.I have considered the philosophy in the Malaysian case of Public Prosecutor v. Muhari bin Mohd Jani and Another [1996] 4 LRC 728, 734-5 cited in DPP v. Samuel Kimuchu, supra, that –“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 untrammelled and free, so as to be fairly exercised according to the exigencies of each case”. 16.I find that the revisionary jurisdiction exists in cases of all orders, interlocutory or final, of the subordinate court, save that an order of acquittal may not be revised to an order of conviction. Moreover, the Court may exercise its jurisdiction to revise an order suo moto, despite existence and or exercise of right of appeal by the party who brings the matter requiring revision to the attention of the court by application for revision or otherwise. This was the holding of H.M. Supreme Court of Kenya (Rudd, Ag. CJ. Connell and Pelly Murphy, JJ.) in R. v. Ajit Singh s/o Vir Singh [1957] EA 822, 824 when it considered the construction of then section 363 (5) of the Criminal Procedure Code (in the same terms as today’s section 364 (5) of the CPC), as follows...”1.The High Court in exercising its revisionary powers on sentences however must always bear in mind that sentencing is an exercise in judicial discretion and ought not to tinker with it unless there are demonstrable reasons that the sentence imposed either was not provided for in law or that the trial court did not take into account relevant factors or took into account irrelevant factors at the time of sentencing, and/or that the sentence imposed was too harsh or lenient in the circumstances of the case. In Ogolla VS. R (1954) EACA 270 the Court held thus-“The court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. To us, we would add, third criterion namely; the sentence is manifestly excessive in view of the circumstances of the case (R. VS. Shermosky (1912) 28TLR 263.” 25.In the instant case, the Applicant was arraigned before the Trial Court charged with the offence of being in possession of Narcotic Drugs Contrary to Section 3 (1) as read with Section 3 (a) of Narcotic Drugs and Psychotropic Substances Control (Amendment) Act, No. 4 of 2022 where particulars of the offence were that on 9th January, 2026; at 1500 hours at Makongeni Phase Five Area, in Thika West Sub-County within Kiambu County, he was found in possession of fifteen (15) rolls (15) grams of cannabis of street value of Kshs. 1,500/- which was not in medical preparation form. From the charge sheet, the date of arrest is 09/01/2026 and the date he appeared before Court to take plea was 12/01/26 and although he pleaded guilty, the matter was deferred because the facts were not ready. He was remanded until 22/1/2026 but again, the facts were still not ready. The facts were finally read to him on 9/2/2026 which he accepted. 26.Conviction was entered. The Prosecutor, Ms. Samitta informed the Court that the Applicant was a first offender while the Applicant in mitigation asked for leniency. 27.The Court proceeded to sentence the Applicant, and in so doing, expressed itself on the appropriateness of the sentence as follows:“The accused mitigation is duly considered. Accused is a first offender. The offence is more serious, it is a concern to the society and some deterrent sentence is called for. Accused is sentenced to serve 3 years imprisonment.” 28.The Judiciary Sentencing Guidelines 2023 provide a comprehensive guide on when it is appropriate to impose a custodial sentence as follows:“ 2.3.15 In deciding whether to impose a custodial or a non-custodial sentence, the following factors should be considered:i.Gravity of the offence: In the absence of aggravating circumstances, or any other circumstance that renders a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided with respect to sentences that have been adjudged as deserving less than three (3) years.ii.Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences except where the seriousness of the offence crosses the custody threshold as set out in paragraph 2.3.13 above. When dealing with repeat offenders, consideration should be given to the nature of the previous behaviour and the time that has elapsed between the previous conviction and the current offence. For adult offenders with previous convictions that relate to offences committed when the offender was a child, these should be disregarded unless the circumstances of the case demand that they be taken into account owing to the similarity or frequency of the behaviour, or the seriousness of the previous offence(s). In any event, previous convictions should not be taken into consideration unless they are either admitted or proved…1v.Conduct of the offender: non-custodial sentences are best suited for offenders who are already remorseful and receptive to rehabilitative measures.v.Protection of the community: Where there is evidence that the offender is likely to pose a threat to the community, a custodial sentence may be more appropriate. The probation officer`s report should inform the court of the risk posed by the offender to the community 48 in order to inform sentencing.vi.Offender’s responsibility to third parties: Where committing an offender to a custodial sentence is likely to unduly prejudice others, particularly vulnerable persons who depend on them, a court should consider if, in light of the nature and seriousness of the offence, the objectives of sentencing can be met with a non-custodial sentence or a suspended sentence (see paragraph 2.11 of these Guidelines). The court should enquire into the offender’s personal circumstances and, where appropriate, seek the assistance of a pre-sentence report. 29.In this case, the Applicant is a first offender who pleaded guilty on the first date of the Court appearance. He expressed remorse and asked the Court for leniency. The subject matter of the narcotic and psychotropic substance he was found in possession of was worth a paltry Kshs. 1500/-. The Applicant had no prior criminal history. No adverse information was obtained regarding his general conduct in society, as the Court did not call for the pre-sentence report prior to passing sentence. 30.The sentence in my view is manifestly excessive and disproportional and in contravention of the sentencing guidelines. The Court did not adequately give due consideration to the mitigating that the Applicant was a 1st offender with no criminal history, and had pleaded guilty in the first instance and above all, had expressed remorse before the Court. It did not explain why it had to depart from the favourable consideration for non-custodial sentence contemplated in the sentencing guidelines where combination of these circumstances are demonstrated to exist as they did for the Applicant. Further, even the value of the subject matter of the offence which was a mere 1500/ was not considered in considering the proportionality of the sentence, not to mention that there were no aggravating factors which were demonstrated to justify the custodial sentence or any report that the Applicant was unsuitable for a non-custodial sentence. Allowing such a sentence that manifestly goes against the sentencing guidelines to stand would be a failure by this Court in discharging its constitutional duty of supervision on the subordinate to ensure fair administration of justice. 31.Accordingly, this Honourable Court directs that Sentence imposed against the Applicant be and is hereby varied and reduced to the period already served. The Applicant is set free unless otherwise lawfully held. RULING DATED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE, 2026.L.N. MUGAMBIJUDGE