https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10209

Okello v Republic (Criminal Revision E350 of 2024) [2026] KEHC 10209 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10209 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E350 of 2024 JK Sergon, J July 13, 2026 Between Tom Okello Applicant and Republic Respondent Ruling 1.The subject matter of this ruling is the motion dated 10th July, 2025 taken out by Tom Okello the applicant herein. In the aforesaid motion the applicant sought for a review of the sentence imposed against him in Nakuru Chief Magistrate’s Court Criminal Case No. 654 of 2010. 2.The applicant filed an affidavit he swore in support of the application. The Republic did not file a response to the motion. The applicant filed written submissions. 3.I have considered the grounds set out on the face of the motion and the facts deponed in the supporting affidavit. I have also considered the applicant’s written submissions. 4.In the aforesaid application the applicant beseeched this court to issue an order directing that he serves the remaining part of 3 years 5 months under Community Service Order or on probation. 5.He argued that a longer sentence of 28 years contravenes section 216 and 389 of the Criminal Procedure Code and the values in the sentencing police guidelines, 2016. 6.It is the argument of the applicant that under Article 50(2) (p) (q) he had a right to benefit from the least severe sentence and have his sentence reviewed. He further pointed out that the under Article 165(3)(b) of the constitution, the High Court has the competent jurisdiction to hear and determine the instant application. 7.The background of the instant application is short and straightforward. The applicant was tried and convicted for the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic and Psychotropi Substances Control Act and subsequently sentenced to life imprisonment at the Chief Magistrate’s Court, Nakuru. 8.The record shows that the applicant’s appeal was eventually dismissed. Being undeterred, the appellant filed a second appeal to the Court of Appeal. The Court of Appeal affirmed the conviction but commuted the life sentence to 28 years imprisonment. 9.The applicant is now before this court beseeching this court for clemency arguing that he had served more than a third of his sentence with an estimated remaining period of less than three (3) years which qualifies him for consideration under the recent directives and legal provisions. 10.The applicant argued that section 4 of the Probation of Offenders Act provides a flexible legal framework allowing courts to consider probation for offenders based on facts such as age, character, antecedents, health, the nature of the offence and extenuating circumstances. The applicant further cited the Chief Justice’s Memo dated 7th December, 2022 which emphasised the importance of considering non-custodial sentences for inmates serving three years or less or those serving long sentences but remaining with three years or less thus promoting alternative to incarceration. 11.After a careful consideration of the applicant’s application, four critical issues arise for consideration.i.First, this application is basically an application for revision disguised as a sentence review. Section 364(5) of the Criminal Procedure Code does not permit this court from entertaining an application for revision at instance of applicant.ii.Secondly, it is doubtful whether this court has jurisdiction to entertain an application challenging or questioning a sentence imposed by the Court of Appeal. The Court of Appeal in this case commuted the life sentence imposed by the Chief Magistrate’s Court to a sentence of 28 years imprisonment. The applicant has argued that the sentence imposed by the Court of Appeal contravenes section 216 and 389 of the Criminal Procedure Code. It would appear the applicant’s application is an appeal disguised as an application for revision.iii.Thirdly, whether this is a case fit for consideration under the Probation of Offenders Act and the Community Service Order Act. The aforesaid pieces of legislation applies to offences where the sentence imposed is 3 years and below. The nature of the offence the applicant was convicted for is a serious one. In fact, he was sentenced to serve life imprisonment which sentence was later commuted to 28 years imprisonment by the Court of Appeal.iv.Fourthly, assuming that the applicant’s application is competently before this court, I doubt whether the remainder of the applicant’s prison term is less than three (3) years as of now. 12.In the end, I find the applicant’s motion filed on 10/7/2026 to be incompetent and without merits. Consequently, the same is ordered struck out and dismissed. DATED, SIGNED AND DELIVERED THIS 13TH DAY OF JULY, 2026 AT NAKURU.J. K. SERGONJUDGEIn presence of:Jamleck C/AMiss Anyumba for the StateTom Okello, present in person