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JudgmentABDI MWANIKI GITHOME AND WYNCE OCHESI VS4 min read

ABDI MWANIKI GITHOME AND WYNCE OCHESI VS

High Court at Mombasa High Court · · Andayi W.F.

  1. This matter comes before this court for review of sentence under Article 50(2)(q) and Article 165(6) and (7) of the Constitution of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
  2. The applicant was convicted and sentenced by the Magistrate’s Court at Mombasa on 8/11/2023 for the offence of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya that on 27/10/2023 between 0700 Hours and 1600 Hours at National Housing area in Changamwe Sub-County within Mombasa County jointly with another with whom he was charged, broke and entered a dwelling house of zrichard Waithaka Wamburu and stole from therein a laptop make HP, a laptop charger, digital watch charger, mobile phone make Oppo A83T, laptop bag and two pairs of rubber shoes all valued at KShs 80,000/= the property of Richard Waithaka Wamburu. The laptop and laptop charger were recovered from the offender.
  3. The offender, who was the 2nd accused person in the trial court pleaded guilty to the charge and was convicted and sentenced to serve 4 years imprisonment.
  4. In my understanding, review of sentence for purposes of decongestion of prisons may be undertaken under the provisions of Article 50(2)(q) of the Constitution which provides that: -

“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”

  1. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:

“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

  1. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
  2. Before sentencing, the prosecution informed the court that the offender had one previous record of conviction for stealing and had been placed on probation. In mitigation, the offender conceded that indeed he had a previous conviction as stated and had nothing else to say in mitigation. The trial court did not call for a pre-sentence report. Although not mandatory, it is desirable that such a report be called for in order to aid the court to appreciate the personal circumstances of the offender and other persons affected by the offender’s conduct such as the victim and the general community at large in order to inform itself of the appropriate sentence that would be appropriate.
  3. The sentence review report filed in this court by Mutisya Kioko, Probation Officer on 16/10/2024 indicates that the offender is not suitable for a non-custodial sentence largely for the reason that he breached the probation order that he was committed to in the previous conviction.
  4. The offender is aged 20 years. He has been in custody for about 11 months. His expected date of release is 8/7/2026. The report indicates that he has undergone intense rehabilitation and has reformed and is ready to abide by a non-custodial sentence if granted. He however, does not show remorse for the offence. His family prays for his release and they are ready to assist him in integration and ensure that he gets a positive environment upon his release.
  5. Article 165(7) of the Constitution provides that in exercise of its supervisory mandate, the High Court may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
  6. In this case, the offenders co-accused pleaded guilty afterwards and was sentence to serve 7 months imprisonment. He has since been released.
  7. Punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system. It will be a wrong message to send to the community that such a person can easily walk out of his punishment.
  8. However, in view of the great disparity in the sentence metted out to the two co-accused, the fact that the offender herein has demonstrated remarkable appreciation of his mistake and is ready to be guided through reform and his family is ready and prepared to assist him through reintegration, I find that his case is deserving of review of sentence.
  9. Consequently, in exercise of the powers granted to this Court by Article 50(2)(q) and Article 165(6) & (7) of the Constitution and following the directions by the Honourable the Chief Justice to the courts to make efforts to decongest prisons due to overcrowding, it is hereby ordered that the convict’s sentence is reviewed to a term of imprisonment so far served and in lieu of the remainder of the term of imprisonment he will pay a fine of KShs 10,000/= in default to serve six (6) months imprisonment from today’s date.
  10. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 6th day of November, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities electronically to be given effect immediately.


    ABDI MWANIKI GITHOME AND WYNCE OCHESI VS ABDI MWANIKI GITHOME AND WYNCE OCHESI VS