The offender herein Brian Opiyo Oluoch was convicted on two counts.
The first was having or conveying suspected stolen property contrary to section 323 of the Penal Code (Cap. 63) Laws of Kenya as read with section 26 of the Criminal Procedure Code (Cap. 75) Laws of Kenya that upon being searched by a police officer PC John Wandabwa he was found having in possession 1 O-Kings phone, Safaricom phone and Gray iTel phone, mobile phones suspected to have been stolen or unlawfully obtained. I note a defect in the charge that the citation of section 36 of the Penal Code was wrong as the correct section ought to be section 26(1)(c) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. However, I do not find the defect to have occasioned a miscarriage of justice because the offender understood the facts and responded thereto and the citation of section 323 of the Penal Code in itself was sufficient to charge the offence.
The second count was willfully resisting arrest from police officersin due execution of the police officers’ duties contrary to section 103(A) of the National Police Service Act (Cap. 84) Laws of Kenya. He was sentenced to pay a fine of KShs 10,000/= on each count in default to serve 6 months imprisonment.
The default term of 6 months imprisonment imposed by the trial court was beyond what is allowed by law and thus illegal. Under section 28(2) of the Penal Code the maximum term of imprisonment for a fine of KShs 10,000/= where no other default term is provided is 3 months imprisonment. Thus, the sentence has to be set aside and an appropriate sentence substituted. The default sentence is hereby set aside and substituted with 3 months imprisonment. Since default sentences run consecutively, unless otherwise directed, and in this case there was no direction otherwise, then the full term of imprisonment in default would be 6 months.
I have perused the trial court file and I note that that no pre-sentence report was called for by the court before sentence. Although not mandatory, it is always desirable to obtain such a report in order for the court to inform itself of the most appropriate sentence to impose.
The offender has been in custody for slightly over 4½ months from the date of his arrest on 1/7/2024. He remains with just under 1½ months imprisonment to complete the default term. I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed.
The sentence review report filed herein by John Dalluh Probation officer recommends that the offender is suitable for a non-custodial sentence of community service.
I believe that the period so far served in prison is sufficient to enable him understand that breaking the law attracts dire consequences. Consequently, this court now directs that the applicant’s remaining term of imprisonment in default of fine is reviewed and substituted with an order that he be placed on Community service for 40 days at Shikaadabu Chief’s office. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 21st day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
The first was having or conveying suspected stolen property contrary to section 323 of the Penal Code (Cap. 63) Laws of Kenya as read with section 26 of the Criminal Procedure Code (Cap. 75) Laws of Kenya that upon being searched by a police officer PC John Wandabwa he was found having in possession 1 O-Kings phone, Safaricom phone and Gray iTel phone, mobile phones suspected to have been stolen or unlawfully obtained. I note a defect in the charge that the citation of section 36 of the Penal Code was wrong as the correct section ought to be section 26(1)(c) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. However, I do not find the defect to have occasioned a miscarriage of justice because the offender understood the facts and responded thereto and the citation of section 323 of the Penal Code in itself was sufficient to charge the offence.
The second count was willfully resisting arrest from police officersin due execution of the police officers’ duties contrary to section 103(A) of the National Police Service Act (Cap. 84) Laws of Kenya. He was sentenced to pay a fine of KShs 10,000/= on each count in default to serve 6 months imprisonment.
The default term of 6 months imprisonment imposed by the trial court was beyond what is allowed by law and thus illegal. Under section 28(2) of the Penal Code the maximum term of imprisonment for a fine of KShs 10,000/= where no other default term is provided is 3 months imprisonment. Thus, the sentence has to be set aside and an appropriate sentence substituted. The default sentence is hereby set aside and substituted with 3 months imprisonment. Since default sentences run consecutively, unless otherwise directed, and in this case there was no direction otherwise, then the full term of imprisonment in default would be 6 months.
I have perused the trial court file and I note that that no pre-sentence report was called for by the court before sentence. Although not mandatory, it is always desirable to obtain such a report in order for the court to inform itself of the most appropriate sentence to impose.
The offender has been in custody for slightly over 4½ months from the date of his arrest on 1/7/2024. He remains with just under 1½ months imprisonment to complete the default term. I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed.
The sentence review report filed herein by John Dalluh Probation officer recommends that the offender is suitable for a non-custodial sentence of community service.
I believe that the period so far served in prison is sufficient to enable him understand that breaking the law attracts dire consequences. Consequently, this court now directs that the applicant’s remaining term of imprisonment in default of fine is reviewed and substituted with an order that he be placed on Community service for 40 days at Shikaadabu Chief’s office. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 21st day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.