https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12141

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E032 OF 2026** **OLUKUNLE SAMUEL SANYA ADESUA………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide the notice of motion dated 19th February, 2026 seeks an order for the review of his sentence, so that the Court may consider his mitigation in the interest of leniency and liberty; consolidate the two sentences imposed upon him and direct that they run concurrently; and, in the alternative, reduce the sentence to a lesser term. 2. The application is supported by the Applicant’s affidavit sworn on 24th February, 2026 in which he deposes that he was arrested, charged, convicted and sentenced in respect of two offences. The first was making a false declaration for the purpose of obtaining a Kenyan passport, contrary to *Section 54(1)(a)* as read with *Section 54(2)* of the *Kenya Citizenship and Immigration Act,* while the second was being unlawfully present in Kenya, contrary to *Section 53(1)(j)* as read with *Section 53(2)* of the same statute. Kenya Citizenship and Immigration Act, 2011. 3. He states that he was sentenced to one year imprisonment and, in default, to pay a fine of Ksh.1,000,000/- in respect of the first count and Ksh.200,000/- on the second count. 4. The Applicant deposes that he is seeking the reduction of the sentence to a lesser one, based on the mitigation grounds set out in his application and supporting affidavit. 5. He further deposes that the total fine of Ksh.1,200,000/- imposed upon him is too high for his family to raise. Being a Nigerian national, he explains that the Kenyan Shilling is stronger than the Nigerian Naira and, relying on the exchange rate as at 4th November, 2025, states that Kshs.1/-was equivalent to NGN 11.18, making the fine equivalent to approximately NGN 13,416,000. 6. He contends that this is a substantial sum which his peasant family cannot afford, particularly in view of the minimum monthly wage in Nigeria, which he states is NGN 70,000. 7. The Applicant therefore prays that the court reduces the fine to an amount that his family can afford, preferably Ksh.50,000/-. 8. In response to the application, the Respondent filed a replying affidavit sworn on 10th June, 2026 by **Ms. Mercy Mutheu Muema,** learned Prosecution Counsel, in which she contends that the Respondent does not oppose the Applicant’s prayer that the two sentences be consolidated and ordered to run concurrently, since both offences arose from the same transaction and course of conduct, namely, the Applicant’s unlawful presence in Kenya facilitated by a false declaration made for purposes of obtaining a Kenyan passport. 9. The Respondent, however, opposes the Applicant’s prayer for reduction of the sentence. With respect to count 1, it is contended that the Applicant was convicted of making a false declaration for the purpose of obtaining a Kenyan passport, contrary to *Section 54(1)(a)* as read with *Section 54(2)* of the *Kenya Citizenship and Immigration Act.* The Respondent states that the said provision prescribes a fine not exceeding Ksh.5,000,000/- or imprisonment for a term not exceeding five years, or both. 10. The Respondent therefore contends that the fine of Ksh.1,000,000/-, in default of which the Applicant was to serve two years’ imprisonment, imposed in respect of count 1, fell well within the statutory maximum and was a lawful and proportionate sentence. 11. With respect to count 2, the Respondent states that the Applicant was convicted of being unlawfully present in Kenya, contrary to *Section 53(1)(j)* as read with *Section 53(2)* of the *Kenya Citizenship and Immigration Act*. It is contended that the said provision prescribes a fine not exceeding Ksh.500,000/- or imprisonment for a term not exceeding three years, or both. 12. The Respondent consequently contends that the fine of Ksh.200,000/-, in default of which the Applicant was to serve twelve months’ imprisonment, imposed in respect of count 2, was similarly within the lawful statutory range. 13. The Respondent further contends that the Applicant’s prayer for reduction of the fine to Ksh.50,000/- would result in a sentence significantly below the range contemplated by Parliament for offences involving deliberate fraud against State institutions responsible for immigration control and national security. 14. It is further contended that although the Applicant’s inability, and that of his family, to raise the fine is sympathetically noted, such inability does not, in itself, constitute a sufficient legal basis for interfering with a sentence lawfully imposed by a court of competent jurisdiction. 15. The Respondent therefore prays that the Applicant’s prayer for the two sentences to run concurrently be allowed, but that the prayer for reduction of the sentence be dismissed. 16. Having considered the application, the rival affidavits, the record and the applicable law, the following issues avail for determination: 1. Whether this Court has jurisdiction, in the absence of an appeal, to review or revise the sentences imposed upon the Applicant by the trial court. * 1. Whether, in the circumstances of this case, the sentences imposed in respect of the two counts ought to be consolidated and ordered to run concurrently. 2. Whether the Applicant has established a sufficient basis for the reduction or review of the fines and/or default custodial sentences imposed upon him. 1. The first issue for me to address is whether this Court has jurisdiction, in the absence of an appeal, to review or revise the sentences imposed upon the Applicant. 2. The Applicant has described his application as one for review of sentence. In substance, however, the reliefs sought are for the exercise of the High Court’s criminal revisionary jurisdiction. The applicable provisions are therefore *Sections 362* to *366* of the *Criminal Procedure Code,* read together with *Article 165(6)* of the *Constitution.* 3. *Section 362* of the *Criminal Procedure Code* empowers the High Court to call for and examine the record of criminal proceedings before a 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 the proceedings. 4. *Section 364* sets out the powers exercisable by the High Court upon revision. The jurisdiction is therefore supervisory and corrective. It is not an appellate jurisdiction for the re-hearing of a case or for the substitution of the High Court’s discretion for that of the trial court merely because the High Court might have imposed a different sentence. 5. There is, however, an important statutory limitation. *Section 364(5)* of the *Criminal Procedure Code* provides that where an appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The provision is intended to prevent revision from becoming an alternative or substitute for an appeal. 6. The position has been affirmed by the High Court. In ***Martin Mavuti Kituyi v Republic, HCCR Revision No. 27 of 2013*,** as cited with approval in ***Koech v Republic (Criminal Revision E020 of 2023) [2024] KEHC 4977 (KLR),*** the Court explained that the very nature of revision as a discretionary remedy explains the policy underlying *Section 364(5):* revision is not to be used as a substitute for an appeal, but serves to correct findings, sentences, orders or proceedings tainted by incorrectness, impropriety, illegality or irregularity. 7. In the present case, the Applicant was convicted and sentenced by a subordinate court. He had a right of appeal against both the conviction and sentence under *Section 347* of the *Criminal Procedure Code.* He preferred an appeal but subsequently withdrew it. He has now approached this Court seeking a reduction of the sentence principally on the ground that the fine is beyond the financial means of his family and that the Court should exercise leniency. That is, in substance, a plea for the reconsideration of the sentencing discretion exercised by the trial court, rather than a complaint that the sentence was illegal, irregular or improperly imposed. 8. The fact that there is no appeal does not, in itself, confer upon the Applicant a right to invoke revision. On the contrary, where the Applicant had a right of appeal and elected not to exercise it, *Section 364(5)* ordinarily bars a revision application brought at his instance. 9. As was held in ***Koech v Republic*** (supra), a person entitled to challenge a sentence by way of appeal cannot personally approach the High Court for revision in place of an appeal. Similar reasoning was adopted in ***Issack v Republic (Miscellaneous Criminal Application E012 of 2025) [2025] KEHC 6883 (KLR)*** and ***Iya v Republic (Miscellaneous Criminal Application E032 of 2025) [2025] KEHC 14226 (KLR).*** 10. The finding that I reach on the first issue, on the basis of the foregoing, is that this Court does not have jurisdiction to disturb the sentences of the trial Court under its revisionary jurisdiction as no patent illegality, incorrectness, impropriety or irregularity has been demonstrated in the sentence imposed. 11. The second issue for determination is whether the sentences imposed in respect of the two counts ought to be consolidated and ordered to run concurrently. 12. This issue requires a correction of the position taken by the Respondent. Although the Respondent has conceded that the two sentences may be consolidated and ordered to run concurrently on the ground that the offences arose from the same transaction, that concession is legally untenable to the extent that it seeks to make the sentences of imprisonment in default of payment of the fines concurrent. 13. The general principle under the *Sentencing Policy Guidelines* is that where offences emanate from a single transaction, sentences should ordinarily run concurrently, whereas sentences for offences committed in the course of multiple transactions should ordinarily run consecutively. 14. The discretion, however, must be exercised within the limits imposed by statute. The *Guidelines* expressly provide that imprisonment in default of payment of a fine cannot run concurrently with a previous sentence. 15. That rule is given statutory force by *Section 37* of the *Penal Code.* The proviso to that section expressly provides that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine be executed concurrently with a former sentence falling within the specified statutory category. 16. The provision therefore creates an exception to the ordinary discretion to order sentences arising from the same transaction to run concurrently. 17. In ***Theuri & another v Republic (Criminal Appeal E063 & E064 of 2023 (Consolidated)) [2025] KEHC 12422 (KLR),*** the Court set aside an order directing default sentences to run concurrently and held that such an order contravened *Section 37* of the *Penal Code.* The Court consequently directed that the default sentences be served consecutively. 18. Similarly, in ***Abdi v Republic (Criminal Revision E580 of 2023) [2023] KEHC 22654 (KLR),*** the Court held that although the offences arose from a single transaction, imprisonment in default of payment of a fine could not run concurrently with a sentence in another count. The Court accordingly declined to order the default sentences to run concurrently. 19. The same principle was reiterated in ***Anyango v Republic (Criminal Revision E252 of 2022) [2023] KEHC 3998 (KLR),*** where the Court substituted the default sentences and directed that they run consecutively. 20. In the present case, the Applicant was sentenced to pay a fine of Ksh.1,000,000/- in default of which he would serve two years’ imprisonment on count 1 and a fine of Ksh.200,000/- in default of which he would serve twelve months’ imprisonment on count 2. The sentences imposed were therefore primarily fines, with terms of imprisonment prescribed only in default of payment. The legal consequence is that the default custodial sentences cannot lawfully be ordered to run concurrently. 21. I appreciate that the two offences arose from substantially related facts and that, had the trial court imposed substantive terms of imprisonment on both counts, the fact that the offences arose from the same transaction would have been a relevant consideration in determining whether the sentences should run concurrently. That consideration, however, cannot override the express statutory prohibition governing imprisonment in default of payment of a fine. 22. The Respondent’s concession was therefore erroneous in law and cannot bind the Court. A Court cannot give effect to a concession that would result in an order contrary to statute. The Applicant’s prayer that the two default custodial sentences be consolidated and ordered to run concurrently must consequently fail. 23. The third issue for determination is whether the Applicant has established a sufficient basis for reduction or review of the fines and/or default custodial sentences. This issue has largely been dealt with, courtesy of the above findings on the preceding issues. 24. The Applicant’s principal complaint is that the aggregate fine of Ksh.1,200,000/- is beyond the financial means of his family. He has explained that he is a Nigerian national, that the Kenyan Shilling is stronger than the Nigerian Naira and that, based on the exchange rate which he has cited, the fine translates into a substantial amount in Nigerian currency. He has consequently asked the Court to reduce the fine to Ksh.50,000/-. 25. The Court is sympathetic to the Applicant’s plea. The financial circumstances of an offender may, in an appropriate case, be relevant to sentencing. However, in the present proceedings, the question is not whether this Court, exercising original sentencing discretion, would have imposed a different fine. The question is whether the sentence imposed by the trial court is illegal, incorrect, improper or irregular so as to justify the exercise of revisionary jurisdiction. 26. The sentence imposed on count 1 was a fine of Ksh.1,000,000/-, in default of which the Applicant was to serve two years’ imprisonment. The statutory penalty cited by the Respondent permits a fine of up to Ksh.5,000,000/- or imprisonment for a term not exceeding five years, or both. The fine imposed was therefore substantially below the statutory maximum. 27. On count 2, the Applicant was fined Ksh.200,000/-, in default of which he was to serve twelve months’ imprisonment. The statutory penalty cited by the Respondent permits a fine of up to Ksh.500,000/- or imprisonment for a term not exceeding three years, or both. The fine imposed was likewise within the statutory range. 28. The fact that a sentence falls within the statutory range is not, by itself, conclusive of its legality or propriety. A sentence may still be interfered with where it is shown that the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor or imposed a sentence that is manifestly excessive or otherwise improper. 29. However, the Applicant has not demonstrated any such error in the present case. His complaint is essentially that he and his family cannot afford to pay the fines. That complaint, without more, does not establish that the trial court acted illegally or improperly. 30. In ***Musili v Republic (Miscellaneous Criminal Application E046 of 2025) [2026] KEHC 1771 (KLR),*** the Court held that a request for mercy and reduction of a lawful sentence, absent a demonstrated illegality or impropriety, does not provide a basis for revision. The Court further recognized that an appellate court interferes with sentence only where the sentence is illegal, excessive or imposed upon wrong principles. 31. The Applicant has also not demonstrated that the trial court failed to consider his mitigation. Indeed, the present application seeks to have this Court consider mitigation afresh and exercise leniency. That is a sentencing function which, in the circumstances of this case, properly belonged to the trial court and could have been challenged on appeal if the Applicant considered that the sentencing discretion had been improperly exercised. 32. The Court is therefore unable to accept the Applicant’s submission that his family’s inability to raise the fines, however genuine, by itself warrants the reduction of the sentence. 33. The Court must also take into account the nature of the offences for which the Applicant was convicted. The offences involved a false declaration made for the purpose of obtaining a Kenyan passport and unlawful presence in Kenya. The legislature has prescribed substantial penalties for such conduct, reflecting the importance of the integrity of the country’s citizenship, passport and immigration-control systems. 34. I consequently find no illegality, incorrectness, impropriety or irregularity in the fines imposed upon the Applicant that would warrant their reduction in the exercise of this Court’s revisionary jurisdiction. The prayer to reduce the aggregate fine to Ksh.50,000/- is therefore without merit. 35. The result is that the Applicant has not established a basis for the reduction of the fines or for the concurrent running of the default custodial sentences. 36. The application therefore fails and is dismissed. 37. This file is closed. DELIVERED (virtually) DATED and SIGNED this 21st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**