https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8766

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **H.C.C.H.R DIVISION CRIMINAL PETITION NO. E002 OF 2025** BETWEEN KING’OLA MBITHI……………….…………………………….1ST PETITIONER WAMBUA KAMOTA…………………………………………...2ND PETITIONER AND REPUBLIC…………………………………………..................…RESPONDENT **RULING** 1. The Petitioners have moved this court vide an undated Petition brought under the provisions of Article 22(1),23(1)(3)(d),24(10)(d), 2(a)(b)(c), 25(a), 20(1)(2)(3)(a),47,48,51(1),52,165(3)(d),258(1), 259(1) of the Constitution of Kenya, Section 3 & 4 of the Probation of Offenders Act, seeking for orders:- 2. Spent. 3. That Section 3 and 4 (b) of the Probation of Offenders Act Cap 64 be consistent with Article 25(a) 47(1) and 48 of the Constitution of Kenya. 4. That the Petitioner sentenced for imprisonment to benefit from the probation of offenders Act, considering that the petitioners have served substantial part of their sentences and now remaining with one year and 8 months and being first offenders, qualify for a non-custodial sentence. 5. That this Honourable court grant any other orders it may deem fair and just. 6. The petition is supported by the affidavit of the 1st Petitioner who avers that they were arrested and charged in Makindu Criminal Case No.E629 of 2023 with three counts being; entering into protected area contrary to section 102(1)(a) of the Wildlife conservation and Management Act of 2013; Conveying Weapons into a Protected Area contrary to Section 102(1)(f) of the Wildlife Conservation and Management Act of 2013 and dealing with the carcass of Wildlife Species contrary to section 98(1) of the Wildlife Conservation and Management Act of 2013. 7. The petitioners pleaded guilty to all the counts and the court and each was convicted on their own plea of guilt and sentenced to a fine of Kshs.100,000/= in default to serve 1 year in jail on Count I and II ; a fine of Kshs.200,000 and in default to serve 2 years in jail on count III. 8. The Petitioners aver that they are first offenders, remorseful and fully reformed hence they request this Honourable court to allow them a second chance to join the society by allowing them serve the remainder of their sentence on a non-custodial sentence to enable them continue taking care of their families since they were bread winners and they have extremely suffered since they were incarcerated. 9. The Respondent having been served with the application herein opposed the application through grounds of opposition stating that the Petitioners were arrested and charged in Makindu Criminal Case No.E629 of 2023 with three counts being; entering into protected area without a license contrary to section 102(1)(a) of the Wildlife conservation and Management Act of 2013; Conveying Weapons into a Protected Area contrary to Section 102(1)(f) of the Wildlife Conservation and Management Act of 2013 and dealing with the carcass of Wildlife Species contrary to section 98(1) of the Wildlife Conservation and Management Act of 2013. 10. That the case was heard to finality and the Petitioners were convicted on the 17th July, 2023 and sentenced to 4 years imprisonment. 11. That the Petitioners should serve the remainder of the sentence in custody. That the sentence is legal sound and safe. 12. That there is no basis for altering or reviewing the sentence hence the application is without merit, they beseech the court to dismiss it in its entirety. **Analysis and Determination** 1. I have considered the Petition which really an application for review of sentence which came during the decongestion exercise. 1. The Petition invokes the revisional jurisdiction of this court which gives the court powers, in appropriate cases, to review and vary any orders, decision or sentence passed by the subordinate court if the court was satisfied that the impugned order, decision or sentence was illegal or was a product of an error or impropriety on the part of that court. If the court was so satisfied, the law mandated it to make appropriate orders to correct the impugned order, decision or sentence and align it with the law. The above is the import of Section 362 as read with Section 364 of the Criminal Procedure Code. 2. The petitioners have filed a petition seeking review of the sentence on the ground that they are first offenders, reformed and truly remorseful for the offence. 3. This court called for a social inquiry report from Probation and after care services which was duly filed as directed. 4. From the report for the 1st Petitioner, the probation officer indicates that the Local administration is familiar with him as well as his family and therefore he is not a flight risk since he has been residing in the community from 2000. The officer indicates that the Mtito Andei Area Chief revealed that the appellant was active member of community policing has never been reported for any criminal activity. The local administration feels that the sentence served in prison has enabled him to reform. 5. The Mtito Andei Local Administration feels that the 1st petitioner has learned from the time he has spent in prison and they do not object his release on non-custodial sentence. The Mtito Andei Area Chief noted that his family has really suffered a lot from the time the petitioner was jailed and one of his children passed on, additionally his wife left home due to the harsh economic situation since he was the main breadwinner for his family. 6. From the prisons department, the report indicates that the 1st petitioner has been working in the Prison industry and has been recognized for his exemplary work in building and construction. He has also acquired skills in poultry keeping, Bible studies and discipleship. The prison authority stated that the 1st petitioner is discipline and followed orders well. 7. The 1st petitioner was 67 years old, remorseful for this offence and he is a first time offender. He stated that he has learned a lesson on how to stay away from any criminal activity and he will never be involved in any criminal activity. He regrets his actions of dealing in the carcass or meat of wildlife species and promised to sensitize community members on the importance of wildlife. He prays that this Honorable court could consider him for a non-custodial sentence. 8. The 1st Petitioner's family members expressed willingness to be involved in the petitioner’s rehabilitation from any criminal activity if he is released on non-custodial sentence by the honorable court. 9. The probation officer indicates that the petitioner will undergo guidance and counselling on how to stay away from criminal activities and be sensitized on the importance of wildlife, he will also be taken assisted to utilize his masonry skills and linked with employment to sustain his family. 10. That considering the sentiments expressed by the concerned parties and in giving regard to the findings in the report, the petitioner remains with 10 months to complete his four -year sentence. 11. It is the probation officer’s opinion that the appellant is suitable for non -custodial sentence and he may be placed on Probation Orders for a period the honorable court deems fit subject to the discretion of the honorable court. 12. For the 2nd Petitioner, the Probation Aftercare Service Officer indicates that the local administration at Mtito Andei specifically the area chief who is the immediate neighbour of the 2nd petitioner revealed that he comes from a humble background and his family is struggling for resources. The report indicates that the 2nd petitioner has been working in building and construction department while in prison and he has acquired skill in poultry keeping. The prisons department indicated that he is disciplined and follows orders well. 13. The 2nd Petitioner is remorseful for this offence and he is a first time offender. He stated that he has learned a lesson on how to stay away from any criminal activity and he will never be involved in any criminal activity. He regrets his actions of dealing in the carcass or meat of wildlife species and promised to sensitized community members on the importance of wildlife. He prays that this Honorable court could consider him for a non-custodial sentence. 14. The Petitioner’s wife and the siblings expressed willingness to be involved in his rehabilitation from any criminal activity if he is released on non-custodial sentence by the honorable court. 15. The Kyeni Village Elder and Mtito Andei Local Administration feels that the appellant has learned from the time he has spent in prison and they do not object his release on non-custodial sentence. 16. The local administration has requested for community service supervisee to assist in digging holes and planting trees at Nthunguni Primary School, as well as doing repairs at the chief's camp and at Nthunguni Primary School. 17. The probation officer indicates that the 2nd petitioner will undergo guidance and counselling on negative influence, financial literacy, advised on how to stay away from criminal activities and be sensitized on the importance of wildlife, he will also be taken assisted to utilize his skills acquired from the prison and linked him with job opportunities. 18. That considering the sentiments expressed by the concerned parties and in giving regard to the findings in the report, the appellant remains with **10 months to complete his four -year sentence.** 19. It is his opinion that the 2nd petitioner is suitable for non -custodial sentence and he may be placed on Community Service Work to assist in digging holes and planting of 100 as well as doing repairs and maintenance at Nthunguni chief's camp and Nthunguni Primary School for a period the honorable court deems fit subject to the discretion of the honorable court. 20. Under s. 362 of the Criminal Procedure Code the High Court is empowered to 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. Upon doing so the court may under s. 364 of the same code the High Court 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; 21. In the circumstances of this case, it is evident that the applicants are remorseful, first offenders and reformed having been in prison for quite a while. 22. The objectives of sentencing include inter alia Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs, Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts, Denunciation: To clearly communicate the community’s condemnation of the criminal conduct, Reconciliation: To mend the relationship between the offender, the victim and the community. 23. The petitioners have been in custody for a while now a clear indication that they have been punished and must have learnt a lesson. The Probation officer has set out in the report the course of rehabilitation they will take them through, to ensure that they do not repeat the offence. Their families and the local community are ready for them to go home. 24. Neither of the Petitioners was able to pay the fine that was imposed. Each has served about ¾ of the sentence. Each has learnt their lesson that crime does not pay. 25. Taking the cue from article 159(2) (c) of the Constitution, which mandated the Judiciary to encourage ADR, I find the application tenable. I allow the petition; I consider the petitioners have served a sufficient sentence in custody and can now be released on a non-custodial sentence as per the recommendations of the probation officer. 26. The condition is that they will abide by the probation order, the conditions set out in the probation report, in default, they will be liable to serve this sentence in custody. 27. In the spirit of the decongestion exercise at hand, the 1st Petitioner will be placed on Probation Supervision for 12 months. The 2nd Petitioner will serve community Service for 10 months as described by the Probation/Community Service Officer. Orders Accordingly. Judgment Dated, signed and delivered on 15th May 2026 **MUMBUA T MATHEKA** **JUDGE**