https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10998

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERCHO CRIMINAL REVISION NO.E038 OF 2026 MERCY CHEPNGETICH………………………………………...APPLICANT * V E R S U S – REPUBLIC……………………………………………………...RESPONDENT RULING 1. The Applicant has filed an Application dated 20th April 2026 seeking a review of sentence in Criminal Case No. E064 of 2026 at Kericho, in which, on her own plea of guilty, was convicted of the offence of being in possession of alcoholic drinks for sale without a license contrary to section 7(1)(b) as read with Section 62 of the Alcoholic Drinks Act No. 10 of 2010. 2. The particulars are that the Applicant, on 8th January 2026 at around 11:00hrs at Gesagetiet Village seretut sub-location Belgut Sub-County within Kericho County was found in possession of changaa to wit 7 litres for sale in contravention of the above said Act. The Applicant was sentenced to serve 1 year in prison with no option of a fine. 3. In her Application for review the Applicant stated that the Court had jurisdiction to hear and determine this Application under Article 165(3)(6) of the Constitution of Kenya. 4. She further stated that she was remorseful and of the offence and has been in custody since the day of her arrest and asked the court to grant her a second chance and issue her with a non-custodial sentence. 5. The State opposed the Application as the Applicant is a repeat offenceder having been convicted of a similar offence in Criminal Case No. E1673 of 2025 and was fined Kshs. 30,000 and in default 6 months in jail. She therefore had a record. **Analysis and Determination** 1. I have considered the application, the record of the subordinate court, and the prayers sought by the Applicant as well as the states opposition of the same. The issue for determination is whether the Applicant has established sufficient grounds to warrant this Court's interference with the sentence imposed by the trial court. 2. The High Court's jurisdiction to call for and examine the record of a subordinate court is donated by Articles 165(3)(6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code. The Court's revisionary jurisdiction is, however, limited to satisfying itself as to the correctness, legality or propriety of any finding, sentence or order of the subordinate court and the regularity of its proceedings. It is not an avenue through which a convicted person may simply seek a more lenient sentence where the sentence imposed is lawful and properly exercised. 3. The record shows that the Applicant unequivocally pleaded guilty to the charge of being in possession of alcoholic drinks for sale without a licence contrary to section 7(1)(b) as read with section 62 of the Alcoholic Drinks Control Act. The plea was properly taken, the facts were admitted, and the conviction was therefore proper. The sentence of one year's imprisonment imposed by the trial court was within the limits prescribed by the law and was therefore lawful. 4. The Applicant's principal ground for seeking review is that she is remorseful, has been in custody since her arrest, and seeks a second chance through the imposition of a non-custodial sentence. While remorse is a relevant mitigating factor, it is not, by itself, a sufficient basis for this Court to interfere with a lawful sentence. 5. The State has pointed out, and the record confirms, that the Applicant is not a first offender. She had previously been convicted of a similar offence in Kericho Criminal Case No. E1673 of 2025, where she was sentenced to pay a fine of Kshs. 30,000 or, in default, serve six months' imprisonment. Despite the leniency previously extended to her, she committed the same offence again within a short period. This demonstrates that the earlier sentence failed to achieve its intended deterrent effect. 6. A previous conviction for a similar offence is a significant aggravating factor in sentencing. The Judiciary Sentencing Policy Guidelines recognise previous convictions and persistent offending as aggravating circumstances warranting a more severe sentence. A repeat offender cannot ordinarily expect the same degree of leniency as a first offender, particularly where the previous sentence has failed to reform or deter the offender from engaging in similar criminal conduct. 7. Sentencing serves several objectives, including punishment, deterrence, rehabilitation, denunciation of unlawful conduct, and protection of the public. In the present case, while rehabilitation remains an important consideration, the Applicant's conduct demonstrates a pattern of repeated offending. The interests of deterrence, accountability and protection of the public therefore assume greater prominence. This Court will rely on the Court of Appeal’s decision in **Wanjema v Republic [1971] EA 493**, which established that an appellate court will not interfere with sentence unless the trial court acted on a wrong principle, overlooked a material factor, or imposed a manifestly excessive sentence. The trial court did not impose a manifestly excessive sentence. 8. Consequently, I find that the application for review of sentence lacks merit. The sentence imposed by the trial court was legal, proper and justified in the circumstances. The application dated 20th April 2026 is therefore dismissed. Delivered at Kericho on 14th July 2026 CHELANGAT MUTAI JUDGE 14/7/2026 In the presence of Ms. Loice Osoro for the state Mercy Chepngetich – Applicant C/A Irene Chelangat