When a magistrate realised that a sentence imposed on 10 men convicted over protests on the Nairobi-Mombasa Highway had not been properly structured, the court did something rarely seen in criminal proceedings—it openly acknowledged the error and asked the High Court to fix it.

The result was not only a correction of the record but also a significant reduction in the punishment, with each accused person’s fine dropping from Sh30,000 to Sh5,000 for each of the two offences they admitted committing.

The ruling by the High Court in Makueni offers a glimpse into the judiciary’s self-correcting mechanisms and underscores that even courts can revisit their own mistakes when the interests of justice demand it.

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The case arose from the arrest of 10 men accused of participating in demonstrations that disrupted traffic along the busy Nairobi-Mombasa Highway at Emali Township on May 18, 2026.

The group, led by James Musyoki Makau and nine others, was charged with taking part in an unlawful assembly and unlawfully obstructing a public road by barricading it with stones.

When they appeared before the Senior Resident Magistrate’s Court in Makindu, all 10 pleaded guilty to both charges.

After hearing their mitigation, the trial court sentenced each of them to pay a fine of Sh30,000 or serve six months in prison.

Ordinarily, that would have marked the end of the matter.

However, shortly after delivering the sentence, the magistrate discovered a crucial omission.

Although the accused had been convicted on two separate counts, the court had imposed what amounted to a single omnibus sentence without specifying the penalty applicable to each offence individually.

By then, warrants committing the convicts to prison had already been issued and execution of the sentence had commenced.

Gavel — Rather than allowing a procedurally defective sentence to remain in force simply because it had already been pronounced, the judiciary used its internal review mechanisms to rectify the error transparently.

Photo credit: File | Nation

Recognising that it had become functus officio, meaning it no longer had the legal authority to alter its own final judgment, the trial court referred the matter to the High Court for revision.

Rather than allowing the error to stand, the magistrate candidly acknowledged the mistake and sought supervisory intervention.

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The judge, exercising the High Court’s revisionary jurisdiction, agreed that there was an apparent error on the face of the record.

“The trial court did not specify the sentence applicable to each count separately despite conviction having been entered on both counts,” the judge observed.

That omission required correction in order to ensure that the sentences complied with the law.

The High Court then went beyond merely separating the penalties and took a fresh look at whether the original punishment was appropriate.

In doing so, the judge turned to the Judiciary Sentencing Policy Guidelines, which caution against excessive reliance on short custodial sentences for minor offences.

The guidelines note that Kenya’s prisons remain overcrowded and that offenders convicted of misdemeanors carrying sentences of less than three years are often better suited for non-custodial sanctions.

They also warn that imprisoning petty offenders for short periods rarely achieves rehabilitation and may instead increase the likelihood of reoffending.

The judge noted that prosecutors had confirmed that the accused had no previous criminal records, effectively making them first offenders.

Their decision to plead guilty had also saved judicial time and demonstrated remorse, factors that traditionally attract leniency during sentencing.

Taking those circumstances into account, the judge concluded that the original Sh30,000 fine imposed by the magistrate was “on the higher side”.

He substituted it with a fine of Sh5,000 for each count, with a default sentence of one month’s imprisonment if the fine is not paid.

The sentences were ordered to run consecutively.

The High Court also directed the Makindu court to issue amended committal warrants reflecting the corrected sentence.

Article 165 of the Constitution empowers the High Court to supervise subordinate courts and review proceedings to ensure the correctness, legality and propriety of their decisions.

That supervisory role proved crucial in this case.

Rather than allowing a procedurally defective sentence to remain in force simply because it had already been pronounced, the judiciary used its internal review mechanisms to rectify the error transparently.

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