Njagi v Republic (Miscellaneous Criminal Application E073 of 2025) [2026] KEHC 11681 (KLR) (27 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **MISC. CRIMINAL APPLICATION NO. E073 OF 2025** **MUTEMBEI NJAGI …………………..……….APPLICANT** **VERSUS** **REPUBLIC………………….…………………...RESPONDENT** **R U L I N G** 1. Mutembei Njagi (Applicant) was charged in Chuka Chief Magistrate’s Court Criminal Case No. 336 of 2022 with the offence of grievous harm contrary to section 234 of the Penal Code. 2. In a judgement dated 30th November 2022 the Applicant was convicted and sentenced to serve 10 years’ imprisonment. In sentencing the Applicant, the court (Hon. Njoki Kahara SRM) noted that he was not remorseful for his actions. 3. The Applicant filed an appeal No.E001/2024 dated to the High Court but withdrew the same on 21st July 2023. 4. The Applicant has now filed the present Application dated 30th July 2025 seeking a review of his sentence. The Applicant has raised the grounds that he was in pre-trial remand; was remorseful and had served two years and 2 months. 5. The Applicant stated in his oral submissions that his children were suffering and prayed to be granted a chance to go and take care of them. 6. The Application is opposed by the Respondent vide submissions dated 27th April 2026. The Respondent submitted that the sentence meted out to the Applicant was legal, just and as the trial court considered all the relevant factors and circumstances. 7. On whether the sentence could be varied to a non-custodial one, the Respondent submitted that a custodial sentence was proper in the circumstances of the case as it was deterrent. 8. The revisionary jurisdiction of this court is provided by Section 362 of Criminal Procedure Code which states:- **The High court may 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.** 1. I called for and examined the trial file as required. *Prima facie* there was nothing irregular about the Applicant’s trial, conviction and sentence. 2. As earlier stated, the Applicant seeks a review of his sentence so that he serves a reduced and varied sentence. 3. It is trite that sentencing is at the discretion of the trial court and an appellate court would not easily interfere with such discretion unless it was shown that the sentence was harsh and excessive. 4. In the case of **Bernard Kimani Gacheru vs Republic (2002) eKLR,** the Court of Appeal stated that:- ***“ It is now settled law, following several authorities by this court and the high Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 the wrong material, or acted on the 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.”*** 1. In this case, the Applicant was convicted of the offence of grievous harm Section 234 of the Penal Code provides:- **“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”** 1. In sentencing the Applicant, the court considered the circumstances of the case. It stated:- “Accused is not even remorseful for his actions. I considered the seriousness of the offence he is charged with. I have considered the extent of the injuries the complainant sustained. I hereby sentence the accused to serve ten (10) years imprisonment.” 1. In seeking a reduction of his sentence, the Applicant has not demonstrated that he was remorseful. He has not shown that he has been adequately rehabilitated in prison. The record shows that the offence he was charged with was aggravated. He armed himself with a panga, went to the victim’s house threatening to kill her and cut her on the hand and forehead. It is my considered view that the Applicant shall benefit from a prison and not non-custodial sentence. He is not suitable for a non custodial sentence. 2. According to the charge sheet, the Applicant was arrested on 4th June 2022 and took plea on 6th June 2022, when he was also granted a bond of Kshs.100,000/- and an alternative cash bail of Kshs.80,000/- Bond approval proceedings show that surety was approved on 7th June 2022. It is not therefore correct for the Applicant to state that he was in pre-trial custody during the pendency of his trial. 3. In the end, the Application has no merit and is dismissed. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 27th day of July, 2026.** **..........................** **R. LAGAT - KORIR** **JUDGE** **Ruling delivered in the presence of Applicant at Isiolo Prison acting in person, Ms Rukunga for the Republic; Muriuki (Court Assistant)**