https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9358

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CRIMINAL REVISION NO. E068 OF 2025** **MARTIN MWENDA GITONGA ………………...APPLICANT** **VERSUS** **REPUBLIC………………………………..........RESPONDENT** **R U L I N G** 1. Martin Mwenda Gitonga (Applicant) was the 2nd accused in High Court Criminal Case No. 19 of 2018. Along with his co-accused, they were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. They were accused of having murdered one Lucyline Muthoni on 22nd August 2018, at Nkio village Karangoni sub-location, Karangoni location within Tharaka Nithi County. 2. At the conclusion of the trial, the 1st accused was acquitted for insufficiency of evidence while the Applicant was convicted and sentenced to serve 30 years’ imprisonment. 3. The Applicant now seeks a review of his sentence. In his Application dated 1st July 2025, the Applicant stated that he had withdrawn his appeal to the court of appeal in order to pursue this review. The Applicant stated that the trial court did not order forensic examination and in particular of DNA extraction to link him to the deceased’s death. That the lack of forensic evidence linking him to the scene pointed to his innocence as he was not at the scene of crime. 4. In submissions dated 2nd October 2025, the Applicant urged the court to order a computation of his sentence to take into account the pre-trial custody in compliance with section 333(2) of the Criminal Procedure Code. 5. He further urged that his sentence be varied from custodial to non-custodial. 6. In rooting for a non-custodial sentence, the Applicant submitted that he had acquired knowledge and skills and would be a useful member of society if granted a non-custodial sentence. He stated that he was transformed, was remorseful and deserved a second chance through alternative dispute resolution between him and the victims. 7. The Applicant annexed copies of his Trade Test Certificate, to prove that he had acquired carpentry skills while in prison. He also attached an unsigned recommendation letter from the Embu prison stating that he was rehabilitated and skilled. 8. The Respondent filed submissions in opposition dated 25th February 2026. They submitted that the sentence was legal and fair in the circumstances of the case. That the trial court considered all the circumstances and departed from the prescribed death sentence. 9. With respect to the DNA evidence alluded to by the Applicant, the Respondent submitted that the same could only be raised on appeal. The Respondent urged that the Application lacked merit. 10. I have considered the Application. The Applicant sought three prayers namely:- 11. That the pre-trial custody period be included and his sentence be reduced. 12. That the court revisits the evidence and in particular the lack of forensic evidence in the case. 13. That his sentence be varied to a non-custodial sentence. 14. In sentencing the Applicant, Gitari J. stated as follows:- “I have considered the mitigation by the accused. I also note the victim impact statement. The accused does not appear to realize the gravity of his action and is not remorseful. Though he pleads for leniency the offence calls for a deterrent sentence. I will spare the accused the death penalty. I sentence the accused to serve thirty (30) years imprisonment. The sentence be reduced by the period he has spent in custody and therefore sentence will run from 1st October 2018. Right of Appeal 14 days.” 1. It is clear from the above that the Applicant’s sentence includes the pre-trial custody. The prayer is therefore spent. 2. With respect to the prayer for reconsideration of the evidence, I agree with the Respondent that the same was a matter for appeal. This court cannot re-open the Applicant’s case for re-evaluation of the evidence already evaluated by a court of equal and concurrent jurisdiction. The route provided by law is the right of appeal as stipulated by Article 50 of the Constitution as follows: **(2) Every accused person has the right to a fair trial, which includes the** **right—** 1. **to be presumed innocent until the contrary is proved;** **(b) to be informed of the charge, with sufficient detail to answer it;** **(c) to have adequate time and facilities to prepare a defence;** **(d) to a public trial before a court established under this Constitution;** **(e) to have the trial begin and conclude without unreasonable delay;** **(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;** **(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;** **(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;** **(i) to remain silent, and not to testify during the proceedings;** **(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;** **(k) to adduce and challenge evidence;** **(l) to refuse to give self-incriminating evidence;** **(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;** **(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—** **(i) an offence in Kenya; or** **(ii) a crime under international law;** **(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;** **(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and** **(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.** 1. I therefore decline the unprocedural invitation to revisit the evidence in this case. 2. I have considered the prayer for variation of sentence to a non-custodial sentence. Section 354 of the Criminal procedure Code grants powers to this court upon revision to increase, reduce or alter the nature of the sentence. However, it must be borne in mind that sentencing is the discretion of the trial court which discretion is exercisable upon consideration of the circumstances of the case as well as both aggravating and mitigating factors. In sentencing the Applicant to 30 years’ imprisonment the trial judge considered the seriousness of the offence and exercised her discretion. 3. In the end, I have found no legal basis to interfere with the Applicant’s sentence. The Applicant is encouraged to reinstate and pursue his appeal in the court of appeal. 4. The Application is dismissed. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 25th day of June, 2026.** **..........................** **R. LAGAT - KORIR** **JUDGE** **Ruling delivered in the presence of Applicant acting in person, Ms Gakumu for the Republic; Muriuki (Court Assistant)**