https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9787

Kimani v Republic (Criminal Revision E017 of 2026) [2026] KEHC 9787 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9787 (KLR) Republic of Kenya In the High Court at Machakos Criminal Revision E017 of 2026 NIO Adagi, J June 25, 2026 Between Stephen Maina Kimani Applicant and Republic Respondent Ruling 1.By a letter dated 17th February 2025 (I believe the tear was meant to be 2026) written by the law firm of Odero & Associates Advocate for the Applicant Stephen Maina Kimani, an application was made to this Court under Article 165 of the Constitution of Kenya, 2010, Section 28 (2) of the Penal Code and Section 131 of the Criminal Procedure Code asking this court to call for and examine the proceedings in the trial court in Wamunyu Criminal Case No. E077 of 2023 at Wamunyu Principle Magistrate’s Court for purposes of satisfying itself as to the correctness, legality or propriety of the order(s), judgement and/or sentence passed on 19th February 2026. That upon examining the said record, this court be pleased to alter or reverse the said order(s), ruling and/or proceedings and direct the immediate release of the Applicant from custody or otherwise this Court deems fit and just in the circumstances. The application is premised on the ground that the trial magistrate proceeded to act on wrong principles considering that he violated the provisions of Section 28(2) of the Penal Code by imposing a sentence that was manifestly harsh and excessive in the circumstances. Copies of the Charge Sheet and judgement were attached to the said letter. 2.In opposition to the application, the Respondent filed grounds of opposition dated 7th May 2026 as follows:-a.That the orders sought are incapable of being granted by this Honourable Court.b.That the application filed herein is not only misconceived and bad in law but also misplaced as this court cannot review a correct and lawful conviction and sentence.c.That this Honourable court lacks jurisdiction to hear and determine this application since review applies to incorrect, improper or illegal orders issued by the lower court.d.That the Application is vexatious and misleading and abuse of the process of court 3.The Respondent prays that the application be dismissed in its entirety. 4.I have carefully considered copies of the charge sheet and the judgment of the trial court which were attached to the Applicant’s letter dated 17th February 2026 and filed in court via CTS on 18th March 2026. I have also considered the Respondent’s grounds of opposition to the application and the applicable law. 5.The Applicant was charged on the main Charge with the offence of Stealing by Agent contrary to Section 283C of the Penal Code, in the alternative he was charged with Handling Stolen Property Contrary To Section322(2) Of The Penal Code.He was acquitted of the main Charge but convicted on the alternative Charge for which he was sentenced to pay a fine of Kshs.300,000/=and in default to serve four (4) years imprisonment. 6.The Applicant contends that the trial magistrate proceeded to act on wrong principles considering that he violated the provisions of Section 28(2) of the Penal Code by imposing a sentence that was manifestly harsh and excessive in the circumstances. 7.On the other hand, the Respondent avers that the orders sought are incapable of being granted by this Court. That the application filed herein is not only misconceived and bad in law but also misplaced as this court cannot review a correct and lawful conviction and sentence wherefore this Court lacks jurisdiction to hear and determine this application since review applies to incorrect, improper or illegal orders issued by the lower court. 8.The Offence of handling stolen property is provided for under Section 322 of the Penal Code and it provides as follows: -322.Handling stolen goods(1)A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.(2)A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.(3)For the purposes of this section—(a)goods shall be deemed to be stolen goods if they have been obtained in any way whatever under circumstances which amount to felony or misdemeanour, and "steal" means so to obtain;(b)no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the stealing. 9.Further, Section 364 (5) of the Criminal Procedure Code provides that:“When 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 instant of the party who could have appealed” 10.In William Mwangale Ongoma v Republic [2020] KEHC 1446 (KLR) the learned judge held that:“A court in revision is not concerned with the merits of the decision of the court but rather on the impropriety, mistake, illegality of the order, sentence or judgment. This court's powers of revision are limited to satisfying itself to the correctness, legality or propriety of any findings, sentence, or order recorded or assed and as to the regularity of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under Article 165(6) of the Constitution the court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of the lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice ..” 11.As highlighted herein above, the sentence for handling stolen goods/property under Section 322 (2) is imprisonment with hard labour for a term not exceeding fourteen years. In the instant case the Applicant was sentenced to a fine of Kshs.300,000/= in default to serve four (4) years imprisonment. The Applicant has not expounded on his ground that the trial magistrate proceeded to act on wrong principles in violating the provisions of Section 28(2) of the Penal Code to enable this court consider the same. 12.On the foregoing, this court finds the Applicant’s ground that the trial magistrate proceeded to act on wrong principles and violated the provisions of Section 28(2) of the Penal Code by imposing a sentence that was manifestly harsh and excessive in the circumstances to be not only misconceived and bad in law but also to be misplaced. 13.Guided by the provisions of Section 364 (5) of the Criminal Procedure Code, it is my view that the Applicant’s redress if any arising from the trial court’s judgement lies in an appeal to this court. Therefore, the Applicant is at liberty to lodge an appeal within 14 days of this ruling if he so wishes. 14.The upshot is that the Applicant’s application vide the letter dated 17th February 2026 and filed in court on 18th March 2026 is hereby struck out. 15.In the meantime, the money amounting to Kshs.495,000/= produced as PExt.8 to remain in the court’s bank account as ordered by the trial court. 16.Orders accordingly. File closed. RULING DATED & SIGNED AT MACHAKOS THIS 25TH JUNE 2026NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH JUNE 2026In the presence of:Ms. Odera........... for ApplicantMs. Agatha................................. for RespondentMillygrace................................... Court Assistant