Eyes on trial courts as judge reverses man's 18-year sentence for trespass

In his ruling, the judge observed that there was a need to re-conceptualise the effectiveness of custodial sentencing to promote a clear, fair, uniform, and consistent approach by all levels of courts.

“There is a big outcry amongst our communities and society at large on the level of inconsistency, disparity, unfairness, and disproportionate verdicts on sentence being imposed by the trial courts and even on appeal, which do not reflect the sentencing objectives and principles in our policy document,” Justice Nyakundi said in his July 22, 2025 decision.

“As if that is not enough, the letter and spirit of our sentencing scheme seems to depart from the legislature’s intention and vision in the criminal administration of justice. Sentencing in Kenya ought to be fair and proportionate to the crime being prosecuted by the state against the accused persons or defendant,” the judge added.

He said the role of non-custodial sentence should underpin the country’s penal system, in which custodial sentence remains a recourse of last resort in punishing offenders.

“The sentence policy guidelines of the judiciary 2023 provide a framework in which judicial discretion should be exercised to arrive at a fair and proportionate sentence on individualised circumstances,” said the judge.

Mr Ruto had been convicted on his plea of guilty and condemned to serve 18 years in jail, though the applicable law recommends a six-month jail term. He was convicted by a magistrate’s court in February 2025.

He faced charges of trespass with intent to commit an offence or to intimidate, insult, or annoy. It was alleged that on the evening of February 7, 2025, at the Kaplelach area in Turbo sub-county, without a reasonable excuse, the defendant trespassed on a land of Stephen Kimeli Maswai. He pleaded guilty to the offence, was convicted, and sentenced to an imprisonment term.

Aggrieved by the punishment, he applied for review of the sentence at the High Court, stating that he was remorseful, had taken responsibility for his offence, and was regretful of his action.

Justice Nyakundi took note of the probation officer’s report capturing the inmate’s family background, opinion of the local administrators, prison assessment, rehabilitation, and reintegration.

“It is vital that the test of the seriousness of the offence when weighed with the applicant (Mr Ruto) being a first offender, he pleaded guilty to the allegations on trespass with intent to commit an offence or to intimidate insult or annoy contrary to section 5(1) of the trespass Act and the effect of mitigating factors renders this court to review the sentence for purposes of rehabilitating the offender. As a consequence, he is placed in community service order for ten months at Emkwen Primary School,” ordered Justice Nyakundi.

Section 5(1) of the Trespass Act says a person found guilty of the offence is liable to imprisonment for a term not exceeding six months or to a fine not exceeding Sh2,000 or to both such imprisonment and fine.

“Time has come to re-conceptualise the effectiveness of custodial sentencing to promote a clear, fair, uniform and consistent approach by all levels of courts. A theme of any review of a sentence must not lose sight of the objectives and sentencing. Am of the considered view that an effective sentence must also serve to communicate to society that justice has been done and the wrongdoer punished and denounced for his or her conduct,” Justice Nyakundi said.

“Generally speaking over time I have been involved in the practice of law as a trier of criminal cases they is no probative evidence that the harsher, punitive or severe the sentence does provide greater marginal deterrent effects” the Judge added.

→ [email protected]