https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7838

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **HCCRREV NO. E056 OF 2025** **REPUBLIC…........................................................................ APPLICANT** **-VERSUS-** **GEORGE MALONZI MUHINDI …..………………….........RESPONDENT** **JUDGMENT** 1. The Office of the Director of Public Prosecutions filed an application for revision vide Notice of Motion dated 15/9/2025 against George Malonzi Muindi seeking the following orders from the High Court of Kenya at Machakos; 2. ***The applicant first requests that the court certify the application as extremely urgent.*** 3. ***That the High court calls for and examines the records of Kithimani Senior Principal Magistrate's Court Criminal Case No. E514 of 2022.*** 4. ***That the primary objective is to revise the sentence passed by the trial court, which the applicant describes as very lenient, and to grant any other orders in the interest of justice.*** 5. The grounds for this application state that the respondent was convicted of cultivating a prohibited plant valued at Ksh. 8,940,000 (298 kgs) and trafficking in narcotics valued at Ksh. 3,780,000 (126 kgs), yet received a sentence of only a Ksh. 15,000 fine or six months imprisonment in default, which the applicant deems extremely lenient. 6. The supporting affidavit, sworn by prosecution counsel Linda Nyauncho, reiterates her dissatisfaction with the lenient sentence, arguing that the high value of the narcotics should have been considered an aggravating factor. 7. She deposes that the sentence does not conform to the provisions of the law, specifically pointing out that Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances Act for trafficking provides for a fine of not less than fifty million shillings or three times the market value, imprisonment for fifty years, or both, while Section 6(a) for cultivation provides for a fine of Ksh. 250,000 or three times the market value, imprisonment not exceeding twenty years, or both. 8. The affidavit concludes that a deterrent sentence is necessary owing to the effects and prevalence of the offence, and that justice requires enhancing the sentence meted out to the respondent. 9. The respondent, George Malonzi Muhindi, in his Replying affidavit dated 1/12/2025 states that he was the accused in the lower court case (Criminal No. E514 of 2022 at Kithimani Law Courts). 10. He originally pleaded not guilty to both counts but was found to have a case to answer, and was ultimately convicted on both counts. 11. At sentencing, he requested leniency, noting that he was a first offender, an orphan, had children dependent on him, and that his brother was in the ICU. He believes the court exercised its discretion fairly and that there are no grounds to revise or review the sentence. 12. He argues that his reformed behaviour since release, including joining a church and participating in local community development and social welfare groups, vindicates the court’s decision. 13. A detrimental revision that enhances his sentence would negatively impact his family, whom he now supports. 14. He therefore requests the court to decline any revision that would increase his sentence. 15. The Office of the Director of Public Prosecutions did not file written submissions but they argued in the revision application that the trial court failed to consider the enormous weight and street value of the narcotics as aggravating factors, and that a deterrent sentence is necessary given the prevalence and serious societal effects of drug offences. 16. The application prays for the High Court to call for and examine the trial court’s record, revise the sentence as being excessively lenient, and impose a penalty consistent with the law. 17. The respondent submitted that they oppose the prosecution’s application for revision of the sentence handed down by the Kithimani Principal Magistrate’s Court. 18. The respondent, George Malonzi Muhindi, was convicted on two counts: cultivating a prohibited plant and trafficking narcotic drugs under the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. 19. The trial court sentenced him to a fine of Kshs. 15,000, with a default term of six months’ imprisonment. 20. The prosecution now seeks a revision of that sentence, arguing it is too lenient given the circumstances of the case. 21. The respondent argues that sentencing is a matter of trial court discretion, and a revision court should not interfere unless there is a clear error, an overlooked significant factor, or a misapplication of legal principles. He contends that no such error exists on the record. 22. The respondent further submits that a revision court should not exercise its powers to the prejudice of an accused by enhancing a sentence without hearing the accused, and that the prosecution should have appealed rather than sought revision. 23. No new important evidence has emerged since the trial. The respondent also points to his mitigation before the trial court, where he pleaded for leniency as a first offender, assured the court he would not reoffend, explained that he is an orphan with dependent children, and noted that his brother was in intensive care under his care. 24. His cooperation with the court and prosecution also supported a lenient sentence. Since serving his sentence, the respondent has changed his life: he no longer cultivates cannabis, is an active church member, participates in community development and social welfare groups, and supports his family. 25. He argues that enhancing the sentence would negatively impact his family. Should the court consider any revision, the respondent requests a probation report to assess his post-sentence character and life. 26. In support, he cites two High Court revision cases, **Michael Awali Matei v. Republic (Eldoret Criminal Revision No. E027 of 2025) and Lewis Maina v. Republic (Nyeri Criminal Revision No. E231 of 2024)**, where the courts declined to interfere with trial court sentences. 27. The respondent therefore urges the court to dismiss the revision application and uphold the original sentence. 28. The issues for determination in this revision application are as follows; 29. ***Whether the High Court has jurisdiction to entertain the prosecution’s application for revision of the sentence under Sections 362 and 364 of the Criminal Procedure Code, given that an appeal against sentence lies to the High Court.*** 30. ***Whether the sentence imposed by the trial court was illegal, improper, or grossly lenient so as to justify interference by this court in its revisionary jurisdiction.*** 31. I carefully considered the Notice of Motion application dated 15th September 2025 by the Office of the Director of Public Prosecutions, the Replying Affidavit of the Respondent, George Malonzi Muindi, and the respective written submissions of both parties. 32. The main issue in the dispute lies in the sentence passed by the Kithimani Senior Principal Magistrate's Court in Criminal Case No. E514 of 2022, where the Respondent was convicted on two serious counts. 33. The first count was cultivating a prohibited plant, namely cannabis sativa valued at Ksh. 8,940,000 (298 kgs), and the second count was trafficking in narcotics valued at Ksh. 3,780,000 (126 kgs). 34. The trial court sentenced the Respondent to pay a fine of Ksh. 15,000 on each count, with a default sentence of six months imprisonment, the sentences to run consecutively. 35. The prosecution argues that this sentence is extremely lenient and does not conform to the mandatory provisions of the law, specifically citing Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances Act. 36. The Act provides for trafficking, a fine of not less than fifty million shillings or three times the market value, imprisonment for fifty years, or both, and Section 6(a) for cultivation, the Act provides for a fine of Ksh. 250,000 or three times the market value, imprisonment not exceeding twenty years, or both. 37. The first issue for determination is whether this court should entertain the prosecution’s application for revision at all. 38. The revisionary powers of the High Court are donated by Sections 362 and 364 of the Criminal Procedure Code. Section 362 provides that; ***"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. This power is supervisory and discretionary. However, Section 364(5) of the Criminal Procedure Code provides a critical limitation as follows; ***"When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed."*** 1. It is not in dispute that the prosecution was aggrieved by the sentence and had a clear right of appeal against the sentence to the High Court. 2. The prosecution did not file an appeal but instead opted to file an application for revision. 3. The revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. 4. In other words, parties should not argue an appeal under the guise of a revision. 5. While the High Court has inherent supervisory jurisdiction and can act suo motu, the proviso to Section 364(5) clearly bars a party who had a right of appeal from invoking revision as a matter of right. 6. The prosecution has not demonstrated any exceptional circumstances that would justify departing from this clear statutory bar. 7. The proper avenue for the prosecution to challenge a sentence perceived as lenient was by way of an appeal, not a revision. 8. Notwithstanding the procedural bar, and assuming arguendo that the court has the discretion to examine the record suo motu for illegality, the second issue is whether the sentence itself is so illegal or improper as to demand interference. 9. The prosecution contends that the fine of Ksh. 15,000 is grossly inadequate and does not conform to the law. 10. The court has examined the provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act. Section 6(a) states that a person who cultivates a prohibited plant shall be liable to a fine of two hundred and fifty thousand shillings or three times the market value of the crop, whichever is greater, or to imprisonment for a term not exceeding twenty years, or to both. 11. Section 4(a) provides that a person who traffics in any narcotic drug or psychotropic substance shall be liable to a fine of not less than one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is greater, or to imprisonment for a term of not less than ten years but which may extend to life imprisonment, or to both. 12. However, it is a well-established principle of statutory interpretation that the words **"shall be liable to"** denote a maximum penalty, not a mandatory minimum. 13. The words **'shall be liable to'** do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. 14. In other words they are not mandatory but provide a maximum sentence only. Therefore, the argument that the law prescribes a mandatory minimum fine of fifty million shillings for trafficking is a misdirection. 15. The trial court retained discretion to impose a sentence that is proportionate, as long as it was within the legal parameters. 16. The trial court’s sentence, although extremely lenient, was within the legal limits as the fine of Ksh. 15,000 is not illegal per se. 17. The more pertinent question is whether the discretion was exercised properly. 18. The court is mindful of the provision in Section 364(2) of the Criminal Procedure Code which provides that no order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard, which the Respondent has had. 19. The Respondent has also argued that since his release he has reformed, joined a church, and now supports his family. 20. While the court commends this positive change, the revisionary power is concerned with the legality and propriety of the original sentence passed by the trial court. 21. Nevertheless, the court is acutely aware of the principle that revision should not be used as a disguised appeal by a party who failed to exercise that right. 22. The court finds that the prosecution has not offered any justification for bypassing the appeal process. 23. To allow this revision would set a dangerous precedent, encouraging litigants, including the State, to disregard statutory timelines and procedures for appeal and instead seek discretionary revision whenever a judgment is unfavourable. 24. The application for revision is hereby dismissed. The sentence of the trial court is upheld, not on its merits, but because this court finds that the prosecution is improperly invoking its revisionary jurisdiction where a statutory right of appeal existed and was not exercised. 25. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** PC Mangare - State Mr Muoki for the Respondent Chrispine - Court Assistant