1.The applicant was arraigned before the senior principal magistrate’s court at Engineer vide Criminal Case No E3212 of 2021, charged with the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code. The particulars of the charge are as per the charge sheet. He pleaded guilty and was sentenced him to serve a term of five (5) years imprisonment.
2.However, he seeks for sentence review based on notice of motion application filed in court on; May 20, 2022. in which he prays that the custodial sentence in question, be reduced and converted into a non-custodial sentence.
3.He relies on the memorandum of sentence review in which he states in the mitigating grounds as follows: -
4.The respondent did not file a response despite being accorded to do so. The probation department filed a sentence review report dated; August 1, 2022, that indicates, the applicant dropped out of school in form three (3) after being found in possession of bhang. That, he has been doing casual jobs at construction sites. He is single. Further, his parents are farmers at Nakuru and are ready to welcome him and help him join a polytechnic to do a course that will enable him to sustain himself.
5.That, so far he has served a period of nine (9) months in custody and that, he does not have any previous criminal record of conviction. Further, he has not been trained in any technical course and does manual work at the prisons.
6.The probation report further states that, the applicant is fit and willing to serve the remaining sentence on community service order at Kirima Primary School in Nakuru for three (3) years and that, if placed on the CSO program, the probation office will ensure he is well reintegrated into his family and the community.
7.The applicant filed submission on October 13, 2022, and stated that, he is twenty (20) years old and comes from a poor family. That, as the only boy in the family his parents depend on him. Further, at the time of his arrest he was in form three (3) and had dropped out due to lack of fees.
8.Furthermore, he pleaded guilty to the offence and has undertaken a biblical course in prison. That, he understands the consequences of the crime he has committed and is willing to be a role model in society and create awareness to youths in school and in society. He avers that, the sentence meted is harsh and urges the court to convert it to a non-custodial one.
9.In considering the application, I note that, the law that guides the revisionary power of the High Court is provided for under section 362 of the Criminal Procedure Code which states as follows:
10.However, that section of the law should be read together with section 364 of the Criminal Procedure Code which states as follow: -
11.It is clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
12.It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision, as held in; Major SS Khanna vs Brig FJ Dillon 1964 AIR 497, 1964 SCR (4) 409).
13.It is noteworthy therefore that, the revision jurisdiction does not allow the court to interfere and correct errors of facts, or of law when the order is within the jurisdiction of the subordinate court; even if the order is right or wrong, or in accordance with the law, unless it exercised its jurisdiction illegally or with material irregularity. Reference is made to the cases of; Wesley Kiptui Rutto & Another vs Republic  eKLR, Republic vs Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutors vs Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP vs Samuel Kimuche.
14.Having considered the application, I find that, the offence with which, the applicant is convicted and sentenced with is provided for under section 308 (1) of the Penal Code, which section states as follows: -
15.It is clear from the aforesaid that, the sentence provided for the offence is imprisonment for a period of not less that, seven (7) years and not more than fifteen (15) years. The sentence meted in the present case was imprisonment term of five (5) years, which is less than what is prescribed under the law and is therefore illegal, improper and incorrect.
16.However, a look at the particulars of the sentence reveals that the applicant was suspected of being intent to commit burglary. The particulars state that:
17.From the above the applicant should have been charged under section 308 (2) as read with section 308 (4) of the Penal Code that provides that: -
18.From the above, the law provides for a maximum imprisonment of five (5) years. In this case the applicant was given the maximum sentence despite being a first offender.
20.Pursuant to the aforesaid, the provisions cited above, render the applicant not suitable for review of sentence under Community Service Order Act, as the subject sentence is over three (3) years. Be that as it were, the applicant having pleaded guilty and saved the court’s time and having been treated as a first offender, the maximum sentence meted out is harsh and I reverse it to imprisonment with hard labour for three (3) years with effect from the date of sentence.
21.It is so ordered.