'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E048 OF 2025
(Coram: Andayi W. F., J.)
CHRISTOPHER NGELESURE ………………………………………………… ……APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………….RESPONDENT
DECONGESTION
1. This matter is placed before this court for review of sentence. In my understanding the sentence review may be undertaken 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 in conjunction with 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. Article 50(2)(q) of the Constitution of Kenya:
“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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364(1)(b) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it is in conformity with the constitutional provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of reformation.
6. This court is aware that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference.
7. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences, creating disturbances. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
8. The Lower Court file has been placed before me and I have perused the same and I find the following:
a. Conviction: Breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code.
Particulars of offence: On diverse dates between 1st November 2023 and 29th day of December 2023 at unknown time at Mamba Village in Dzombo Location of Lungalunga Sub-County within Kwale County you and others not before court broke and entered school of Franz Josef Secondary School and stole assorted items of unknown value and one sub-miscible water pump valued at KShs. 18,000/=.
Alternative charge: On 29th day of December 2023 at around 1730 hours at Mamba Village in Dzombo Location of Lungalunga Sub-County within Kwale County. Other than cause of stealing dishonesty retained 1 pair of tracksuit, 6 lesos, 4 keys, 3 colgates, two exercise books A4 200pages, 1 counter book 4 square 384 pages, 3 oxford dictionary, one four figure mathematics, log book, one quran holy, 2 calculators, 1 washing brush, 3 pairs of shoes (polished), 1 pair of black rubber shoe, 1 cup, 4 plates, 3 torches, 15 pens, 1 sewing string brown in colour, 1 mathematical set, 1 towel, 1 always pad (softcare), 1 kamusi, 2 jerricanes yellow in colour knowing or having a reason to believe them to be stolen goods.
b. Plea: Not guilty.
c. Sentence: 3 years’ imprisonment for breaking into a building and committing a felony.
d. Criminal record: First offender.
e. Pre-sentence report: None.
9. Sentence review report – Favourable for a sentence review.
10. Recommendation – Be considered for sentence review.
11. Court: The offender has indicated readiness to comply with non-custodial sentence, order and condition that maybe imposed by the court. He has further expressed his strong desire to resume his education. This is an opportunity to rebuild his future while making amends through constructive behavior.
12. Order: In view of the above, the Offender is placed on probation for a period of twelve months from the time of release. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Kwale County Probation Office for appropriate directions on probation.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E048 OF 2025
(Coram: Andayi W. F., J.)
CHRISTOPHER NGELESURE ………………………………………………… ……APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………….RESPONDENT
DECONGESTION
1. This matter is placed before this court for review of sentence. In my understanding the sentence review may be undertaken 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 in conjunction with 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. Article 50(2)(q) of the Constitution of Kenya:
“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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364(1)(b) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it is in conformity with the constitutional provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of reformation.
6. This court is aware that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference.
7. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences, creating disturbances. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
8. The Lower Court file has been placed before me and I have perused the same and I find the following:
a. Conviction: Breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code.
Particulars of offence: On diverse dates between 1st November 2023 and 29th day of December 2023 at unknown time at Mamba Village in Dzombo Location of Lungalunga Sub-County within Kwale County you and others not before court broke and entered school of Franz Josef Secondary School and stole assorted items of unknown value and one sub-miscible water pump valued at KShs. 18,000/=.
Alternative charge: On 29th day of December 2023 at around 1730 hours at Mamba Village in Dzombo Location of Lungalunga Sub-County within Kwale County. Other than cause of stealing dishonesty retained 1 pair of tracksuit, 6 lesos, 4 keys, 3 colgates, two exercise books A4 200pages, 1 counter book 4 square 384 pages, 3 oxford dictionary, one four figure mathematics, log book, one quran holy, 2 calculators, 1 washing brush, 3 pairs of shoes (polished), 1 pair of black rubber shoe, 1 cup, 4 plates, 3 torches, 15 pens, 1 sewing string brown in colour, 1 mathematical set, 1 towel, 1 always pad (softcare), 1 kamusi, 2 jerricanes yellow in colour knowing or having a reason to believe them to be stolen goods.
b. Plea: Not guilty.
c. Sentence: 3 years’ imprisonment for breaking into a building and committing a felony.
d. Criminal record: First offender.
e. Pre-sentence report: None.
9. Sentence review report – Favourable for a sentence review.
10. Recommendation – Be considered for sentence review.
11. Court: The offender has indicated readiness to comply with non-custodial sentence, order and condition that maybe imposed by the court. He has further expressed his strong desire to resume his education. This is an opportunity to rebuild his future while making amends through constructive behavior.
12. Order: In view of the above, the Offender is placed on probation for a period of twelve months from the time of release. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Kwale County Probation Office for appropriate directions on probation.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
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