[2025] KEHC 8268 (KLR)

Republic v Langat & another (Criminal Revision E299 of 2023) [2025] KEHC 8268 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KEHC 8268 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E299 of 2023

RN Nyakundi, J

June 12, 2025

Between

Republic

Prosecutor

and

Enock Kiprotich Langat

1st Accused

Anderson Masika Wekesa

2nd Accused

Ruling

1. Before this court the accused persons were charged with offence:Impersonation c/sec 31(2) of the Kenya National Examination Council Act of 2012. The particulars of the offence are that:i.Enock Kiprotich Langat: On the 25th day of July 2023 at Rift Valley Technical Training Institute (RVTTI) within Ainabkoi sub-county in Usain Gishu county knowingly allowed Anderson Masika Wekesa to undertake an Examination namely 2601/104 for engineering drawing materials and workshop technology on your behalfii.Anderson Masika Wekesa: On the 25th day of July 2023 at Rift Valley Technical Training Institute (RVTTI) within Ainabkoi sub-county in Usain Gishu county having not been registered to undertake an Examination namely 2601/104 for engineering drawing materials and workshop technology, with intent to impersonate presented yourself as Enock Kiprotich Langat at the Rift Valley Technical Training Institute.

2. This application is based on a letter dated 3rd October 2023 authored by the director of public prosecution which states as follows:i.The accused person pleaded guilty to the charges after which a hearing date was set. On 22nd October 2023, the accused persons opted to change plea, upon which the facts were read and evidence produced. The learned magistrate then discharged the accused persons with a warming under section 35(1) of the penal code upon considering their mitigationii.While noting the judiciary’s discretion in issuing of sentences, it is our humble submission that the learned trial magistrate erred in law by giving an irregular sentence based on the following grounds:

Sentence as Permitted by the Law 3. Section 31(1) and section 31(2) provides that any person who is not registered to take a particular examination but, with intent to impersonate, present himself to take the part of the candidate and the person who is registered to take a particular examination but knowingly allow another person to take that examination on his or her behalf both commit an offence whose penalty is imprisonment for a term not exceeding 2 years or to a fine not exceeding 2 million shillings and may in addition to this be prohibited from taking an examination from a period not exceeding 3 years immediately after the commission of the offence

Mitigation Offered 4. The accused persons begged for forgiveness stating that they would not repeat the offence as they wished to continue with their education. They further indicated that they had sought forgiveness from the school, however this position was not verified formally:a.The learned magistrate inquired from the members in the gallery as to who was present on behalf of the school to which a gentlemen confirmed in the affirmative. It is not clear who this gentleman was and what his affiliation to the school or to KNEC is/wasb.Further that the complainant as per the charge sheet is KNEC through Margaret Moraa, who was not present in court and who was also not consulted to verify the information the accused persons had given in their mitigation.c.In contrast to the above, the judiciary sentencing guidelines in article 10. 7 presses on the fact that the victim’s needs ought to be considered. Further that section 35(1) allows a Judicial Officer to discharge an offender has been established. The ages, character and moral standing of the accused persons were not properly interrogated to arrive at a decision to discharge.

Public Interesta.The said charges were brought to court amidst various reports where the lead complaint (KNEC) had been blamed for either aiding in cheating process or not managing the examinations effectively. Given the nature and magnitude of the offence, we humbly submit that the learned magistrate could have adopted a deterrent sentence in line with the Judiciary Sentencing GuidelinesMy Lord,It is our humble view that although section 26 of the penal code grants the honorable court the discretion to lessen the fines and imprisonment term, the prosecution believes that manifestly low sentence was meted out in this instance. 5. We humbly request that this honorable court calls for and examines the records in the Chief Magistrate’s Court at Eldoret – Cr E1612/23 pursuant to section 362 of the CPC to determine the correctness, legality or propriety of the sentence given.

6. The state wishes to further request the honorable court under section 364 (2) of the criminal procedure code and ask that of its powers under section 364 (1) (a) of the criminal procedure code to set aside the sentence issued by the learned magistrate on 2nd October 2023 and enhance the sentence of the Accused Persons herein.

Decision 7. The state is challenging the discharge order where the learned trial magistrate. The role of judicial discretion in the sentencing process is a fundamental and inescapable issue. It tends to become obscured by other issues, such as determinacy and penal policies. When it does come to the public’s attention, it is usually in a context of controversy over what a judge has done. The public perception of judicial discretion is almost invariably skewed.

8. There are wide disparities in the interpretation of the rules governing upward and downward departures not only among the trial judges but also among the courts of appeals. Some consider only whether a particular factor has been fully taken into account by the guidelines. Others look at the entirety of the circumstances of the case.

9. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law. Judicial discretion is called essential tool to ensure individualizes justice in sentencing based on the peculiar circumstances of each case.

10. I have reviewed the record and subject matter of the issues raised by the Director of Public Prosecution and I find no reason to interfere with the discretion of the trial court in issuing the order of discharge instead of the custodial sentence being sought by the state, so the prayer for enhancement of sentence is denied.

11. It is ordered.

GIVEN UNDER MY HAND AND THE SEAL OF THIS COURT THIS 12TH DAY FOR JUNE 2025. …………………………………..R. NYAKUNDIJUDGE