https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9803

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ITEN** **MISCELLANEOUS CRIMINAL APPLICATION NO. E027 OF 2025** **KELVIN KIMUTAI KOECH................................................................................APPLICANT** **VERSUS** **REPUBLIC...........................................................................................................RESPONDENT** **RULING** 1. The Applicant was convicted in **Iten Senior MCCR/E534/2024** of the offence of causing grievous harm contrary to **Section 234** of the **Penal Code** by cutting the victim on the head on 19/02/2024 by using a panga. He pleaded not guilty and the matter proceeded to full trial. After the trial, he was, by the Judgment rendered on 17/10/2024, convicted and sentenced to serve 10 years imprisonment. The Applicant has now come to this Court seeking review of the prison sentence to a lesser one. 2. Both parties filed written Submissions. The Applicant’s is undated while the Respondent’s, filed through **Prosecution Counsel Rachel Mwangi**, is dated 23/01/2026. 3. The Applicant’s grounds for seeking review of the prison sentence is basically that he is remorseful and regrets his actions. He has also asked the Court to invoke the provisions of **Section 333(2)** of the **Criminal Procedure Code** and reduce the period he is to spend in prison by factoring the period he already spent in custody during the trial. On her part, **Ms. Mwangi** urges that the Applicant has not demonstrated that the sentence was illegal, irregular, or manifestly excessive, which are the considerations recognized under **Section 362** of the **Criminal Code** as grounds for revision of a lower Court’s decision. Regarding the period the Applicant spent in custody, Counsel had no objection to the same being factored, which period she submitted, was between the 18/05/2024 (date of arrest) and 20/06/2024 (Applicant’s release on cash bail), a period of about 1 month. **Determination** 1. The issue herein is “***whether this Court should invoke its revisionary powers and review the sentence of 10 years imprisonment***.” 2. The jurisdiction of the High Court in respect to the powers of Revision is supervisory and is provided under the **Constitution** in **Article 165 (6)** and**(7)**in the following terms: **“6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.** **(7) For the 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.”** 1. **Section 362** of the **Criminal Procedure Code**, then provides that: **“Revision** **362. Power of High Court to call for records** **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. In considering applications for revision therefore, the operative phrase is **“correctness, legality or propriety”** of a finding, sentence or order made by the lower Court. 2. The purpose and nature of the revisionary jurisdiction of the High Court was examined by **Odunga J (as he then was)** in the case of **Joseph Nduvi Mbuvi vs Republic [2019] eKLR**, in which he observed as follows**:** **“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”** 1. On his part, **Nyakundi J**, in **Prosecutor vs Stephen Lesinko [2018] eKLR** outlined the limited instances when the High Court may exercise its revisionary jurisdiction, as follows: **(a)** **where the decision is grossly erroneous;** (**b) where there is no compliance with the provisions of the law;** (**c) where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record;** (**d) where the material evidence on the parties is not considered; and** (**e) where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence.** 2. In respect to sentencing, the principles to be applied by a higher Court when re-considering sentence were restated by the Court of Appeal in the case of **Bernard Kimani Gacheru v Republic [2002] eKLR**, in the following terms: **“It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist”.** 1. As regards **Section 234** of the **Penal Code** under which the Applicant was charged, it provides that: **“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”** 1. In view thereof, it is clear that the 10 years imprisonment imposed by the trial Court was within the statute. This observation does not however mean that this Court cannot determine the issue whether the sentence was manifestly excessive or harsh, which I now hereby do. 2. The Supreme Court, in the case of **Francis Karioko Muruatetu & Another v Republic [2017] eKLR)**, guided that, in sentencing, the following mitigating factors would be applicable;**(a) age of the offender;****(b) being a first offender;****(c) whether the offender pleaded guilty;****(d) character and record of the offender;****(e) commission of the offence in response to gender-based violence;****(f) remorsefulness of the offender;****(g)** **the possibility of reform and social re-adaptation of the offender;** and **(h) any other factor that the Court considers relevant.** 3. I also cite **Majanja J**, in the case of **Michael Kathewa Laichena & another v Republic [2018] eKLR*,*** in which, quoting the **Muruatetu case (supra)**, **he** stated as follows: **“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………”** 1. Similarly, in the case of [**Daniel Kipkosgei Letting Vs. Republic**](http://kenyalaw.org/caselaw/cases/view/215923/) **[2021] eKLR**, the Court of Appeal pronounced itself as follows; **“…………. we observe that 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. ……..”** 1. Applying the above principles to the facts of this case, I consider that the offence of “***grievous harm***” committed by the Applicant was a serious one and under the **Penal Code**, is categorized as a felony. The statutory punishment being set at up to life imprisonment is enough evidence of its seriousness. It is a crime therefore always severely punished. I agree this was a proper factor to be taken considered. The attack was also uncalled for as the victim was simply trying to restrain the Applicant from a fight with a third party. The Applicant also used unnecessarily excessive force as confirmed by the extent of injuries inflicted. Cutting the victim on the head with a panga repeatedly, as he did, means that he intended to inflict maximum damage, and could have easily turned fatal. The victim will no doubt suffer lifelong trauma resulting from the assault. Taking all these factors into account, it cannot be denied that the Applicant merited a stiff and deterrent sentence. I also note that he was given an opportunity to mitigate, which he did. 2. Nonetheless, I also find the existence of material mitigating factors. For instance, the Applicant was said to be a 1st offender with no past criminal record. He also stated, in mitigation, that he is a family man. Although the offence the Appellant was convicted of merits his being put away for a long time, I believe that retribution will be best achieved, not by incarcerating him for an unreasonably long period of time but by giving him a second chance in life, to come out of jail, once he has hopefully learnt his lesson, and rebuild his life. By imposing the very long sentence of 10 years imprisonment, the trial Magistrate appears to have overlooked the weight of these mitigating factors, and by reason thereof, imposed a sentence that appears, on the face of it, to have been manifestly excessive. In the circumstances, I find justification to interfere with the sentence imposed. **Final Orders** 1. For the foregoing reasons, I make the following Orders: 2. The sentence of 10 years imprisonment imposed in **Iten MCCR/E534/2024** against the Applicant, is hereby reviewed and set aside, and substituted with the sentence of 5 years imprisonnment. 3. In accordance with the provisions of **Section 333(2)** of the **Criminal Procedure Code**, the period of time spent in custody by the Applicant during the trial, namely, between 18/05/2024 (date of arrest) and 20/06/2024 (date of his release on bail), shall, in computing the prison term to be served by the Applicant, be deemed to be period already served in prison by him. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **……………….……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **The Applicant (virtually from Kabarnet Prison)** | | | **Ms. Mwangi for the State** | | | **Court Assistant: Brian Kimathi** | |