Ayale v Republic (Miscellaneous Criminal Application E033 of 2025) [2025] KEHC 14275 (KLR) (9 October 2025) (Ruling)
Neutral citation:
[2025] KEHC 14275 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E033 of 2025
JN Onyiego, J
October 9, 2025
Between
Alex Ayale
Applicant
and
Republic
Respondent
(Being revision application against the sentence delivered on 24.7.2025 by Hon. R. Aganyo (PM) in Wajir PM’s Court Criminal Case Number E207 of 2025)
Ruling
1.The applicant herein was charged jointly with two others with the offence of being unlawfully present in Kenya contrary to Section 53(l) (j) as read with Section 53(2) of the Kenya Citizenship and Immigration Act No. 12 of 2012.
2.Particulars were that, on the 3rd day of July, 2025 at around 2200hrs at Manyalo in Wajir East Sub-County within Wajir County, being an Ethiopian Citizens, he was found to be in Kenya illegally and without any documents to warrant his stay in Kenya which is in contravention of the said Act.
3.Having pleaded guilty, he was convicted and subsequently sentenced to serve one year in jail and upon completion of serving sentence, he be repatriated to Ethiopia, his home country.
4.Aggrieved by the sentence, he has now moved to this court vide an undated application for review of sentence seeking review on grounds that;i.He is a first offender.ii.He pleaded guilty to the offenceiii.He is remorseful of his offence and has learnt to be a law abiding citizen.iv.He is ready to be repatriated back to his country.v.That he was brought to Kenya by someone who is a Kenyan citizen who promised him a greener pasture and would employ him.vi.He has no pending appeal.vii.That he did not give proper mitigation during sentencing.viii.He is a father of eight children and sole bread winner of his family and his incarceration has placed them in a very difficult situation.ix.He humbly begged this Honourable Court for leniency and reduce his one year sentence.x.That he is not applying against sentence and conviction but applying for review of a sentence.
5.The applicant is seeking for Court’s leniency by reviewing his sentence. The prosecution is opposed to the application on grounds that the sentence is reasonable and that the applicant has not appealed.
6.I have considered the application herein and the response thereof. The law governing revision in a criminal case is captured under Section 362 and 364 of the CPC. Section 362 and 364 provides as follows;
7.It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the CPC is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision number 194 of 2023 Kisii High court in the case of Barongo Sianyo Atembe vs Republic.
8.From the record, the court is merely being asked to exercise mercy on the applicant. There is no justification to interfere with the sentence which the trial court imposed after exercising due discretion. Accordingly, the application is dismissed for lack of merit.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF OCTOBER, 2025……………………J. N. ONYIEGOJUDGE