https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6788

William v Republic (Miscellaneous Criminal Case E051 of 2025) [2026] KEHC 6788 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6788 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Case E051 of 2025 RN Nyakundi, J May 18, 2026 Between Michael Amwai William Applicant and Republic Respondent Ruling 1.Before this court is notice of motion dated 26th September 2025 seeking the following orders:a.Spent.b.That, the applicant prays to be granted a non-custodial sentence in the spirit of promoting decongestion in prison as directed by the current Chief Justice. 2.The application is based on the grounds that:a.That, the intended effect of 15years imprisonment sentence imposed to me can be achieved by a less severe punishment.b.That I am a first offender and remorseful for the offence committed hence pray for leniency.c.That the complainant will not be prejudiced in the event my sentence is reviewed downwards. 3.The application is further supported by the sworn affidavit of Michael Amwai William who deponed as follows:a.That I am the applicant herein well versed with the facts of this case.b.That I did not appeal against the subordinate Court decisionc.That my sentence expires on 11th August 2028.d.That I was sentenced to serve 15 years’ imprisonment for the offence of murder contrary to Section 203 ARW 204 of the Penal code.e.That I have done two third of the prescribed sentence as required.f.That the complainant will not be prejudiced in the event I am released on probation.g.That the Applicant is ready and willing to confirm and abide by all terms and conditions that the Hon. Court will set.h.That I am a first offender, rehabilitated, reformed and much remorseful. 4.The Applicant in this motion is seeking review of sentence basically based under Section 362 and 364 of the Criminal Procedure Code as further construed under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Decision 5.One time or another Criminal Codes at the level of an Appeal’s Court are confronted with applications on review and reduction of sentence based on specific grounds including illegality, impropriety, justness, correctness, errors of fact and law, discovery of new evidence, change in precedent or manifestly excessive or lenient sentence or any sufficient cause. When an Appellate Court is faced with an application on review of sentence the above grounds form the basic structure upon which the legal lens can view the motion by the Applicant. 6.The review Court is also expected to revisit the Sentencing Policy Guidelines of the Judiciary 2023 which sets out various principles and guidelines as an integral component of the Criminal Justice System. They include the following:Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender.Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. More guidance is given on this in paragraphs 2.3.21 to 2.3.30. 7.Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.Retribution: To punish the offender for their criminal conduct in a just manner.Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person.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.Reintegration: To facilitate the re-entry of the offender into the society. 8.It has often been pointed out that no two cases are alike and this is self-evidently true if the sample cases reviewed in the various levels of offences and applicable sentences which are imposed but the fact remains that Courts must strive for some consistency in punishment and where the sentence is extravagantly high or low an Appeal’s Court becomes entitled to interfere with it. In the same breadth, if an Appeal’s Court has the jurisdiction to entertain a review application, it must be tested alongside with the illuminated principles in the case of Benard Kimani Gacheru vs. Republic [2002] eKLR which provides as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, 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 some wrong material, or acted on a 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 states is shown to exist.” 9.From the comparative jurisprudence the Court in People (DPP) v. W.D. [2008] 1 I.R. 308, Charleton J., as a Judge sitting in the Central Criminal Court, delivered an influential written judgment when passing sentence after a rape trial. He explained his purpose and methodology as follows:“My function today is to decide what sentence is appropriate to the perpetrator in the circumstances of this case. Courts are guided by precedent. It can be argued that the circumstances of the perpetration of the same offence by different offenders on different occasions can be so varied that previous decided cases are of little assistance. It can also be asserted that cases can, notwithstanding variation, have similarities which become apparent once particular factors are identified as being of importance in sentencing. These factors, and the range of variability that they bring about, can be ascertained in previous rulings of this court, the Court of Criminal Appeal and the Supreme Court. It is not my intention to establish guidelines for the sentencing of offenders who have been found guilty of rape. It is my function, however, to place the sentencing of this offender within the parameters of the existing law and practice so that the disposal of this case can be regarded as being consistent with the penal policy of the superior courts in dealing with rape cases. To that end, I have attempted to examine all the previous reported and unreported decisions of the superior courts which are relevant and, together with the judicial research section of the High Court, an analysis has been conducted of the sentences imposed by this court, or reviewed on appeal, from January, 2005 to date. In this judgment I refer to some of these. I have also asked the parties to refer me to any sentencing precedents which they consider may be of help. The remarks which follow are based on this exercise. The result is an attempt to divine both the relevant sentencing principles and the parameters within which such a sentence can be imposed for the sake of consistency and predictability. Here, I am looking solely at actual sentences of imprisonment. In many of the cases a certain portion of a sentence was suspended to encourage good behavior after release. The question that I have posed is simply as to how long a period of imprisonment a perpetrator is required to serve and in what circumstances.” 10.The usefulness of these two jurisprudential decisions is that a sentence is not just reviewed and reduced because the Applicant desires so and in his or her own feelings feels qualified to benefit from an early release. If this was possible then the law on punishment by Parliament could not have prescribed the respective sentences which then form the basis of sentencing offenders as a form of culpability to achieve any one of the objectives set out in the Sentencing Policy Guidelines of the Judiciary 2023. 11.This record has been reviewed over and over again and its respective proceedings which involved the offence of murder contrary to Section 203 of the Penal Code. This offence is punishable with maximum sanction of the death penalty. The Applicant was lucky to get away with fifteen (15) years imprisonment notwithstanding that he violated Article 26 of the Constitution on the right to life. It is the responsibility of every Kenyan to defend this Constitution with no exception. 12.For those reasons, the Applicant has not brought himself within the principles set out by the Court of Appeal in the Bernard Gacheru Case to persuade this Court to review his sentence on any of the grounds set out in Section 362, & 364 of the Criminal Procedure Code as construed with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The application stands dismissed for want of merit under Section 382 of the Criminal Procedure Code. DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.R. NYAKUNDIJUDGE