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JudgmentBRUCE AMENYA VS The Republic4 min read

BRUCE AMENYA VS The Republic

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 23/7/2024 for the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that on 5/5/2024 at Naivas Likoni main store in Likoni Sub-County within Mombasa County stole muffin valued at KShs 320/=the property of Naivas supermarket.
  3. The applicant pleaded guilty to the charge and was convicted and sentenced to serve 18 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.”

  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. The facts recorded by the trial court at plea taking were that, the offender shop-lifted a muffin from the supermarket and he was apprehended as he left.
  3. Before sentencing, the prosecution informed the court that the offender had no previous records of conviction. In mitigation, the offender asked for lenience. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
  4. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the applicant for a non-custodial sentence largely for reasons that the offender did not wish to go back to his family to be assisted with re-integration even as the family was ready to assist him. He had not stayed in the community where his family resides for long and hs spends most of his time away at Mama Ngina Waterfront and so the local administration did not have much to commend about him. The victim/complainant Naivas supermarket reported that they were experiencing rampant incidents of theft similar to that committed by the offender and so they were not receptive of compensation.
  5. The sentence review report filed in this court by Jeria Oara, Probation Officer on 9/10/2024 indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service at Nyamatoki police post.
  6. The offender is aged 21 years, barely out of his childhood. He has been in custody for about six months including remand period. He has no previous record of offending before and his family is receptive of his being released early to serve a non-custodial sentence. He has indicated his willingness to perform community service as he has reflected upon his offending ways. It is indicated in the report that there are no grave concerns in the community to jeopardize his effective rehabilitation and re-integration.
  7. 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.
  8. In this case, the value of the property stolen is small.
  9. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be and given his young age, I find that the period served is sufficient for that purpose.
  10. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Nyamatoki police post for a period of six months. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.
  11. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.

ANDAYI W. F.

JUDGE

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


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