https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8123

Mugenya v Republic (Criminal Miscellaneous Application E027 of 2026) [2026] KEHC 8123 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8123 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E027 of 2026 RN Nyakundi, J June 9, 2026 IN THE MATTER OF ARTICLES 50 AND 165 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SENTENCING POLICY GUIDELINES 2023 Between Patrick Indiasi Mugenya Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 8th May 2026, the Applicant seeks the following orders:a.Spent.b.Spent.c.That may this Court be pleased to put into consideration of the sentenced served as enough and grand me a non-custodial sentence for the remaining sentence.d.That May the Applicant benefit with the above prayer unconditionally as stipulated in the Constitution of Kenya. 2.Which application is based on the following grounds.a.That, the Applicant is a first offenderb.That, the Applicant is fully reformed and rehabilitatedc.That, the Applicant has already served more than two thirds of his sentenced.That, the Applicant had been charged, convicted and sentenced to serve 20 years imprisonment for the offence of Robbery with violence contrary to Section 296(2) of the penal code.e.That through an appeal to the high Court, vide HCCR application No. E007 of 2023, the sentence of 20 years imposed was substituted with a jail term of 15 years imprisonment.f.That; the 15 years imprisonment as imposed in line with the one-third sentence remission rule means a period of 10 years to be served in custody of which the Applicant has already served over 8 years thus remains with a duration of less than 3 years to serve.g.That the period remaining qualifies the Applicant to be enrolled for a non-custodial sentence through the community service orders as an acceptable and legitimate sentence as per Section 24 and 26 (2) of the Penal Code. 3.In support of the application is the annexed affidavit of Patrick Indiasi Mugenya who deponed as follows:a.That I was arrested and charged with the offence of robbery with violence contrary to Section 296 (2) of the C.P.C.b.That I was taken to SPM'S Hamisi Law Courts where the case was heard and determined vide CRC No 637 of 2017.c.That I was sentenced to serve20 years which was then substituted with a lesser jail term of 15years imprisonment vide HCCR NO.007 OF 2023d.That I have now beseeched this Hon. Court not to challenge the sentence or conviction but beg leave of the Hon. Court to consider the time already served since the date of arrest up to date as enough punishment and grand me anon custodial sentence for the remaining few years to complete my full sentencee.That, the Applicant is a first offender.f.That, the Applicant is a breadwinner that his infant family entirely depended on him.g.That, the Applicant is fully reformed and rehabilitated (certificates are available for testimonialsh.That, the Applicant has already served more than two thirds of his sentence. Decision 4.The Superior Courts have delved into the issue of sentencing which is one of the core functions of trial Courts within our Criminal justice system. In the Fatuma Hassan Salo v Republic [2006] eKLR Makhandia J as he then was remarked; Thus, the Court should be guided by evidence and sound legal principles when it comes to the arrival of its decision. He also stated that the Court should put into consideration all the relevant factors and exclude the irrelevant factors. In addition, the Court in Peter M. Kariuki v Attorney General, [2016] eKLR also made the following observations; That a Court has been granted discretion in a manner that is both judicial and reasonable – not upon caprice or personal opinion. This has been emphasized in the judgments of other cases to be useful to the appeal Court when analyzing the judgment of a Lower Court. 5.The Sentencing Guidelines of 2023 provide a foundation and a reference point for Judges and Magistrates in exercising discretion. The Policy Guidelines provides for a three-step approach that is to be applied by a trial Court in individualizing specific sentences befitting specific offences.a.Sentencing options – The Court is meant to consider the sentencing options that are provided for by the statute where the crime falls under. This means a reference to the statute that provides for the crime in question.b.Custodial v non-custodial – For the statutes that provide for both custodial and non-custodial options, the guidelines give principles that are to be considered in analyzing which of these two orders would be the most appropriate.c.The third step is twofold, the choice that is to be considered depends on which option was made in step 3.i.For a non-custodial sentence, the guidelines have also provided a policy through which the Courts discretion is to be applied in choosing the most appropriate non-custodial sentence and eventually mitigation and aggravating circumstances are expected to be put into considerationii.For imprisonment, the same applies, that the guidelines have provided for a policy to be used in determining how long the term of imprisonment should be after the consideration of aggravating and mitigating circumstances. 6.A proper recrafted legal framework is needed to meet the challenging task of appropriate sentencing given the disparities on the various sanctions of what one considers to be the same offence with the prescribed sentence by the Legislature. 7.Having been in this space as a legal professional involved in adjudication of cases within the scope of criminal law, I am of the view that there is an urgent need to carefully study other theories or objectives of sentencing when it comes to punishment in order to determine which ones are acceptable as justifications for punishing the various wrongdoers in specific offences. It serves no purpose to put emphasis on deterrence and abandon the rehabilitative principle or objective if it is thoughtlessly just replaced without very clear guidelines or reasons. There are those who maintain that every different punitive measure taken by the various Courts can be satisfied by a single sentencing scheme, but practically it is difficult to accomplish transformative justice on sentencing by placing emphasis on just one objective. The Courts in Kenya tend to hinge more towards deterrence of an offender than rehabilitation. The common philosophical justifications for the institutional punishments include the following:a.Retribution – punishment is justified merely because the offender has committed a wrong.b.Deterrence – punishment is justified in order to clear the offender from committing further crimes in the future and to deter other members of society in general.c.Rehabilitation – the offender needs to be rehabilitated so that he will behave in a socially acceptable manner.d.Incapacitation – justifies the incarceration of the offender for the protection of society.e.Condemnation – the infliction of punishment upon the guilty person is the symbolic condemnation by society of the individual. 8.The Maximum Prisons facilities in Kenya were designed to hold fewer people than they do at the moment. Apparently, the correctional facilities do not have adequate infrastructure to hold the additional population of inmates hence there is an urgent need to revisit the issue of sentencing regime in Kenya to avoid a catastrophe so that petty offenders should be a subject of non-custodial sentences. It is trite that under the rehabilitative theory judicial discretion has been quite abroad, based on the idea that the punishment should fit the criminal and not the crime. Sentencing should be “individualized” depending upon such factors as the particular circumstances of the crime, the prisoner’s previous criminal record, and the chances that another crime will be committed. Consequently, the Judge or Magistrate must have a great deal of discretion in order to treat offenders on a more individual basis. 9.From the comparative jurisdiction the Court in Mokela vs The State (135/11) [2011] ZASCA 166 the Court held that:“It is well-established the sentencing remains pre-eminently within the discretion of the sentencing Court. This salutary principle implies that the appeal Court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing Court. In my view, this includes the terms and conditions imposed by a sentencing Court on how when the sentence is to be served.” 10.Sentencing in criminal trials is a critical component of the justice system, as it serves as the primary means through which accountability is realized. The efficacy of justice hinges in the perception that the ultimate sentence is fitting and appropriate following a thorough trial and conviction of a defendant. In the contemporary context, an appropriate sentence is one that is predictable and foreseeable. It is only when this predictability is achieved that the discretionary powers exercised in judicial sentencing can be considered equitable. Unfortunately, sentencing practices in many jurisdictions often lack this anticipated predictability, leading to disparities and inconsistencies in the imposition of sentences under similar circumstances by Courts. These discrepancies can foster a negative public perception that justice is not being duly served, posing a formidable challenge to the administration of criminal justice. 11.The Judiciary developed the sentencing guidelines so as to ensure fairness and uniformity in our legal system thereby addressing the issues of sentencing disparities. These guidelines serve as a crucial tool in promoting consistence and transparency guaranteeing that similar offences receive comparable punishment irrespective of the individual involve. In my practice of law over the years sentencing is arguably the most crucial phase of a criminal trial through which the offender’s primary objective of accountability is realized. Regrettably even on appeal or review of sentence this tool provides a framework in the sentencing process broadly so and the discretion involved by an appeal’s Court should consider the guide in each individual case. Therefore, before imposing a noncustodial sentence the Court must ensure among other considerations that the interests of the victim, convict and the community are taken into account. The imposition of non-custodial sentence is appropriate in the specific case as an alternative to imprisonment. There must exist necessary mitigating factors, evidence, information, or circumstances justifying the imposition of non-custodial sentence. 12.I have reviewed the record and the facts of this application and in terms of Section 362 as read with 364 of the CPC and the reflection on the principles on Bernard Gacheru Case I find no merit to review the custodial sentence and have it substituted with non-custodial sentence. The application is therefore dismissed for want of merit. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026……………………………R. NYAKUNDIJUDGE