https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9264

Nyoike v Director of Public Prosecutions (Criminal Revision E006 of 2026) [2026] KEHC 9264 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9264 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Revision E006 of 2026 MN Mwangi, J June 26, 2026 Between Martin Kamande Nyoike Applicant and Director of Public Prosecutions Respondent Ruling 1.The applicant, Martin Kamande Nyoike, was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He entered into a Plea Bargain Agreement and pleaded guilty to the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. Hon Judge Mshila vide a Ruling delivered on 16th October 2025, sentenced the applicant to five (5) years custodial sentence. The said Court directed that the period spent in remand from the date of arrest of 20th July 2020, to the date when he was released on bail on 29th December 2020, be deducted from the sentence meted to him. 2.The applicant has now filed the present application for revision through a Notice of Motion dated 19th January 2026, seeking review of the 5 years’ custodial sentence based on mitigating factors and prevailing circumstances. He seeks an order that the remaining period of his sentence, be substituted with a non-custodial sentence. 3.The application is anchored on the grounds set out on the face of it, and the supporting affidavit of Mr. Martin Kamande Nyoike, the applicant herein, sworn on 19th January 2026. Mr. Kamande averred that he was initially charged with the offence of murder but opted to enter into a Plea Bargain Agreement, and he pleaded guilty to the offence voluntarily without any promise or benefits. He argued that his health has deteriorated as he has medical records from Kenyatta National Hospital which confirm chronic illness. He stated that the Doctor recommended a special diet and a stress-free environment which cannot be provided in prison. He deposed that he has a young family which is wholly dependent on him. He urged this Court to grant him a non-custodial sentence so that he can seek proper medical care and take care of his family. 4.Mr. Kamande averred that he is remorseful for the offence which was committed out of an oversight. He stated that he reached out to the deceased’s mother and agreed on a compensation of Kshs.400,000/=, which was paid to ease the funeral expenses and future needs of the family. He stated that he had not been in conflict with the law before the case he was convicted of, as captured in his pre-sentence report. He urged this Court to grant him a second chance so that he can be re-integrated into society. 5.He asserted that he has reformed since imprisonment and promised not to commit such an offence again. He added that he will use the reform to educate his peers and members of the public against participating in mob justice or taking the law into their own hands. He urged this Court to review the 5 years’ custodial sentence and substitute it with a non-custodial sentence. 6.The applicant filed written submissions dated 9th March 2026 through the law firm of Ndiema & Co Advocates. Mr. Odhiambo, learned Counsel of the applicant submitted that this Court has the jurisdiction to review its own decisions. He relied on the 2016 Judiciary of Kenya Sentencing Policy Guidelines, which list the objectives of sentencing at page 15 paragraph 4.1, to include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. 7.Counsel submitted that the applicant reconciled with the deceased’s family by making financial contribution towards the deceased’s funeral expenses. He stated that the applicant did not have the intention of killing the deceased as he was also shocked to learn that deceased had died due to the injuries sustained in the mob attack. 8.Mr. Odhiambo cited the case of Benson Ochieng & another vs Republic [2018] eKLR, which discussed the sentencing objectives and the case of Francis Karioko Muruatetu & another vs Republic [2017] eKLR, which discussed the guidelines with regard to mitigating factors applicable for sentence re-hearing for conviction on a murder charge. 9.Mr. Odhiambo submitted that the applicant has never stopped regretting his actions, he took active steps to rectify his behaviour, he is a first offender, he is a strong advocate of peace and reconciliation in prison, has created awareness to other remandees on alternative justice system and has taken genuine steps of reconciliation with the deceased’s mother through financial support. 10.Counsel stated that the applicant’s health has deteriorated and that he is still undergoing treatment at Kenyatta National Hospital. He stated that the applicant is in need of a proper diet and good hygiene which is not available in prison. He further posited that the applicant has a young family who depend on him for guidance and stability as he was the sole bread winner before he was imprisoned. Counsel submitted that the applicant has never been in conflict with the law or the community at large, which was confirmed in his pre-sentence report. 11.Mr. Odhiambo relied on the case of Muruatetu (supra), where the learned Judges relied on the case of Vinter and others – vs – the United Kingdom (Applications Nos. 66069/09.130/10 and 3896/10), and stated that a lengthy sentence can be reviewed in the service of the sentence, where there are justifiable causes. He argued that the applicant’s circumstances have changed significantly and the shifts should be properly evaluated. He urged this Court to review the 5 years’ custodial sentence and for the same to be substituted with a non-custodial term. He maintained that the applicant has raised sufficient reasons to warrant the Court to review his sentence. 12.This Court called for a Sentence Review Report which was filed on 28th March 2026. The Probation Officer, Ms Beatrice Kagwiria, considered the personal circumstances of the applicant, prison rehabilitation, the offender’s attitude and impact of imprisonment to come up with the recommendations. She stated that the applicant has demonstrated remorse for his actions and has shown signs of rehabilitation during his imprisonment. She stated that the applicant’s family is very supportive and there is no objection from the local administration or community members on the applicant’s release to non-custodial sentence. 13.She recommended that the applicant is suitable to serve the remainder of his sentence under the Community Service Orders at Zimmerman Chief’s Office, under the supervision of the Officer-in-Charge of Kiambu County Probation Station, subject to the Court’s direction. 14.The Principal Prosecution Counsel, Mr. Gacharia, informed the Court that he is not opposed to the applicant serving the remainder of his sentence on non-custodial sentence. Analysis and Determination. 15.This Court has considered the Notice of Motion application and the supporting affidavit, the Sentence Review Report and the written submissions by the applicant’s Counsel as well as the oral submissions made by the Principal Prosecution Counsel. The sole issue for determination is whether the application for review of the sentence is justified. 16.This Court has read the Ruling on Sentence delivered by Hon. Judge Mshila, wherein she held that the applicant herein, deserved a custodial sentence to act as a deterrent and a lesson to members of the public against taking the law into their own hands and engaging in mob justice, and sentenced the applicant herein, and his co-accused to 5 years’ imprisonment each. 17.It is the Court’s view that the sentence meted out by Hon. Judge Mshila, was justified and it will serve as a deterrence. All the mitigating factors of his medical condition, having a young family and reconciling with the deceased’s mother were factored into the sentence, including the time he spent in custody pursuant to Section 333(2) of the Criminal Procedure Code. 18.This Court has however noted the positive Sentence Review Report, which has acknowledged that the applicant is suitable for a non-custodial sentence and there is no objection from the Principal Prosecution Counsel on the same. 19.This Court has gone through the sworn affidavit of Ms Margaret Wambui Jonah, the deceased’s mother, which was sworn on 25th September 2025, before the applicant was sentenced. She confirmed that the applicant had approached her in the months of September - October 2024 and sought forgiveness from her family. She stated the family had forgiven the applicant for the offence he had committed and they accepted a token of Kshs.250,000/= as reconciliation, which assisted to pay for the funeral expenses. She deposed that she does not have any grudge towards the applicant as she had wholeheartedly forgiven him, and they have now moved on with their lives and have no intention of pursuing the matter further. This Court notes that the pay out by the applicant’s family to the deceased’s family is a form of restorative justice. 20.Community Service Orders are also a form of sentence and have their purpose. This Court is guided in the case of Gilbert Mwangi Kiai v Republic [2017] eKLR, where the Court observed that-“The Community Service Order is therefore not meant to be an easy way out of a serious sentence. It is the sentence that ensures that an offender serves his sentence within his or her community, while going on with his or her normal life. It is a path to complete reintegration of an offender, who may even have committed a serious offence and who is on the way to recovery. It is the one sentence that is expected to grow the trust of the Mwananchi that the Criminal Justice System works. That is why the offender is to do public work, in the eyes of the community he offended, as a form of payback, for the benefit of the community, while benefitting from its non-custodial nature. It is a serious sentence and must be accorded its place, because in addition it saves tax payers the money spent incarcerating offenders, reducing contamination by serious offenders and congestion in the prison…” 21.This Court therefore finds that the applicant will benefit from a non-custodial sentence, where he will receive guidance and counselling from the Probation Office. I have also taken into account that the applicant’s medical condition will be better managed out of Prison. The upshot is that the application is merited and it is allowed in the following terms:a.The applicant, Martin Kamande Nyoike, will serve a non-custodial sentence for the remainder of his 5 years’ sentence; andb.He is hereby put under Community Service Orders at Zimmerman, Chief’s Office under the supervision and conditions of the Officer-in- Charge, Kiambu County Probation Station.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 26TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-The applicantMr. Odhiambo for the applicantNo appearance for the DPPMs Julia – Court Assistant.