Alex v Office of Director of Public Prosecution (ODPP) (Criminal Miscellaneous Application E035 of 2025) [2025] KEHC 11596 (KLR) (29 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 11596 (KLR)
Republic of Kenya
Criminal Miscellaneous Application E035 of 2025
RL Korir, J
July 29, 2025
Between
Maxiden Muchiri Alex
Petitioner
and
Office Of Director Of Public Prosecution (Odpp)
Respondent
Ruling
1.Maxiden Muchiri Alex (Applicant) was charged with the offence of stealing a motorcycle contrary to Section 278 of the Penal Code. The particulars of the offence were that on the 3rd day of February 2025 at Mutino Location in Igambang’ombe Sub-County within Tharaka Nithi County, stole a motorcycle TVS STAR HLX 125 registration number KMDZ 547 Q valued at one hundred thousand shillings (Kshs.100,000/-) the property of Philemon Njagi Giakanu.
2.When the Applicant was first arraigned in court before Hon. D.A Ocharo (SPM) the court observed that he appeared young and directed that his age be assessed before plea was taken. In a report dated 5th February, 2025, the medical officer who examined the Applicant stated that he was 18 years old.
3.The Applicant took plea on 7th February, 2025 and accepted the charge. He was convicted on his own guilty plea, and sentenced to serve 24 months in prison. The court further directed that the motorcycle, which was recovered, be released to the owner.
4.The Applicant now seeks revision of his sentence. In his home made undated Application received in court on 5th May, 2025, the Applicant stated that his constitutional rights were violated because he was not provided an advocate yet he was young and faced a capital offence.
5.The Respondent opposed the Application. In submissions dated 14th July, 2025, the Respondents submitted that the right to legal representation at State expense was not an automatic right. That the Applicant’s case did not meet the threshold for mandatory legal representation and that he suffered no prejudice. The Respondents asked the court to dismiss the Application.
Analysis and determination
6.This court’s revisionary jurisdiction provided for under Section 362 of the Criminal Procedure Code which provides:-
7.In the case of Joseph Nduvi Mbuvi v Republic (2019) eKLR, Odunga J. (as he then was) held that:-
8.I called for and examined the trial record. As already stated the Applicant took plea, pleaded guilty and was convicted on his own guilty plea. The record also shows that he was not represented.
9.The issue then is whether the Applicant’s constitutional right to legal representation was violated occasioning him injustice. The test to be applied is whether the Applicant suffered substantial injustice as a result of not being accorded legal representation.
10.Article 50 of the Constitution guarantees an accused person fair trial rights which include the right to legal representation as follows:-
11.In this case, the Applicant’s complaint is that he was not provided an advocate to assist him in the trial. While the right to legal representation under Article 50 (2) (g) cannot be limited, the provision of an advocate at state expense was limited to cases where substantial injustice would result if an accused was not represented.
12.It is indeed significant to note that the issue of legal representation has been litigated all the way to the Supreme Court, where the court interpreted Article 50 of the Constitution .
13.In the case of Republic v Karisa Chengo & 2 Others (2017) eKLR, the court set out the parameters to be considered in determining what may constitute substantial injustice as follows:-1.The seriousness of the offence;2)The severity of the sentence;3)The ability of the accused person to prepare his own legal representation;4)Whether accused is a minor;5)The literacy of the accused and6)The complexity of the charge.
14.I am guided by the parameters of the above in the present application. To begin with, the Applicant was not charged with a capital offence as he states in his Application. He was charged under Section 278 A of the Penal Code provides:-
15.The penalty provided under section 278 A above cannot be said to be severe. He was liable to a maximum of 7 years’ imprisonment. His 24 months’ imprisonment was a lenient sentence.
16.Further, I have no doubt that the Applicant understood the proceedings. When the facts of the case were read to him, he confirmed that they were true. It was stated in the facts that he was caught in the act a fact which he confirmed.
17.It is my finding therefore that the Applicant, though unrepresented, did not suffer any substantial injustice or prejudice. I dismiss his argument that he deserved a revision of his sentence for lack of legal representation. It was not mandatory for the court to provide him legal representation since he was already an adult and was not charged with a capital offence or other serious felony attracting a heavy penalty or long sentence.
18.1 have however, considered that the Applicant was a first offender and had barely turned 18. While not down playing his lack of judgement and indiscretion in committing the offence, I am persuaded that he has learnt his lesson in jail. I have also considered that the stolen motor cycle was recovered and returned to the owner.
19.Taking into consideration all circumstances, I will temper justice with mercy and order that the Applicant serve the remainder of his sentence on Community Service Order at the local Chief’s office. The Probation Officer shall provide the necessary guidance and support.
Orders accordingly.
RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 29TH DAY OF JULY, 2025...........................R. LAGAT-KORIRJUDGERuling delivered in the presence of the Applicant acting in person and Ms Rukunga for the State; Muriuki (Court Assistant).