1. This matter is placed before this court for review of sentence under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws 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 offender Antony Ojiambo was convicted and sentenced by the Magistrate’s Court at Mombasa on 7/2/2024 on a principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that he stole 6kg gas cylinder, 6 pairs of sports shoes, 9 T-shirts, 3 shirts, 3 pairs of open shoes, a mobile phone, a suitcase and 2 jeans trousers all valued at KShs 50,000/= the property of Brian Giggs Alaro. He was also charged in the alternative with handling stolen property contrary to section 322 as read with section 36 of the Penal Code that he was found with all the above-mentioned items. The alternative charge is so poorly drafted that it was for striking out. Luckily the conviction was based on the principal charge. The items were recovered from the offender.
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 36 months’ 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. The facts recorded by the trial court at plea taking were that, the offender found the complainant’s house wide open with the complainant deeply asleep. He entered and took the items and left with them. He was however intercepted along the way by police officers and arrested when he failed to offer a satisfactory explanation of how he had come by the items. The police officers later went to the complainant’s house and upon alerting him, he said he could not tell how the intruder took the items. He went to the police station and identified all the items as his.
8. Before sentence, the prosecution said that they had no previous records of convictions for the offender. In mitigation, the offender said he had financial challenges and his child was set to join school. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence. The report indicated that the offender was asking for forgiveness. The community and his relatives said he was a habitual thief and part of a gang that was terrorizing them through robberies, that they wanted justice for him and his gang is a big threat to the security of the area.
9. The Probation officer did not file a sentence review report but asked the court to consider the pre-sentence report. That was not a good approach to the issue by the probation officer. The offender is entitled to a review of sentence under Article 50(2)(q) of the Constitution and under section 364 of the CPC the High Court can alter the sentence. Therefore, the offender’s current circumstances including those of his family and the community need to be assessed. There are instances where the community only wanted a short and sharp disciplinary measure for an offender such as s short term of imprisonment, after which they are willing to accept him back. One of the objectives of prison being reformation of the offender, the court also needs to know whether or not for the period served the offender has reformed.
10. 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.
11. In this case, the value of the property stolen is small. The property was recovered and restored to the complainant and so he did not suffer loss but inconvenience.
12. Given that he was a first offender, or at least that was the first time he his offending ways had been processed fully through the criminal justice system, I find that this is a case deserving of a sentence review. I believe that the offender has learned that breaking the law can attract dire consequences however minor the offence may be.
13. Since this court has no basis upon which to sentence him to a non-custodial term, the sentence is reviewed to 18 months’ imprisonment beginning from the date he was arrested and placed in custody on 17/1/2024 as per the charge sheet.
14. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
2. The offender Antony Ojiambo was convicted and sentenced by the Magistrate’s Court at Mombasa on 7/2/2024 on a principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that he stole 6kg gas cylinder, 6 pairs of sports shoes, 9 T-shirts, 3 shirts, 3 pairs of open shoes, a mobile phone, a suitcase and 2 jeans trousers all valued at KShs 50,000/= the property of Brian Giggs Alaro. He was also charged in the alternative with handling stolen property contrary to section 322 as read with section 36 of the Penal Code that he was found with all the above-mentioned items. The alternative charge is so poorly drafted that it was for striking out. Luckily the conviction was based on the principal charge. The items were recovered from the offender.
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 36 months’ 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. The facts recorded by the trial court at plea taking were that, the offender found the complainant’s house wide open with the complainant deeply asleep. He entered and took the items and left with them. He was however intercepted along the way by police officers and arrested when he failed to offer a satisfactory explanation of how he had come by the items. The police officers later went to the complainant’s house and upon alerting him, he said he could not tell how the intruder took the items. He went to the police station and identified all the items as his.
8. Before sentence, the prosecution said that they had no previous records of convictions for the offender. In mitigation, the offender said he had financial challenges and his child was set to join school. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence. The report indicated that the offender was asking for forgiveness. The community and his relatives said he was a habitual thief and part of a gang that was terrorizing them through robberies, that they wanted justice for him and his gang is a big threat to the security of the area.
9. The Probation officer did not file a sentence review report but asked the court to consider the pre-sentence report. That was not a good approach to the issue by the probation officer. The offender is entitled to a review of sentence under Article 50(2)(q) of the Constitution and under section 364 of the CPC the High Court can alter the sentence. Therefore, the offender’s current circumstances including those of his family and the community need to be assessed. There are instances where the community only wanted a short and sharp disciplinary measure for an offender such as s short term of imprisonment, after which they are willing to accept him back. One of the objectives of prison being reformation of the offender, the court also needs to know whether or not for the period served the offender has reformed.
10. 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.
11. In this case, the value of the property stolen is small. The property was recovered and restored to the complainant and so he did not suffer loss but inconvenience.
12. Given that he was a first offender, or at least that was the first time he his offending ways had been processed fully through the criminal justice system, I find that this is a case deserving of a sentence review. I believe that the offender has learned that breaking the law can attract dire consequences however minor the offence may be.
13. Since this court has no basis upon which to sentence him to a non-custodial term, the sentence is reviewed to 18 months’ imprisonment beginning from the date he was arrested and placed in custody on 17/1/2024 as per the charge sheet.
14. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.