'
(Revision of sentence in Criminal Case No. E958 of 2024 at the Chief Magistrates Court Shanzu on 30 th April, 2025 by Hon. A. Mwicigi (CM)
The applicants seek a review of their four (4) year custodial sentence and the same be commuted to a non-custodial sentence served on probation.
The applicants were arrested, charged, convicted and sentenced to four (4) years imprisonment in C.M.’s Court at Mombasa CR. CASE No. E598 of 2024 for the offence of Store Breaking and Stealing contrary to Section 306 (a) of the Penal Code.
That, upon arrest they readily admitted and recorded their confessions before the recording officer, No. 237588, Chief Inspector Geoffrey Cheruiyot. During plea taking the facts and information of the offence was narrated and explained to the applicants to which they conceded the facts were correct and true, at which point they were convicted on their own admission of the offence and plea of guilty.
Thereafter, the trial court considered their pre-sentencing reports and, in its discretion, sentenced them both to four (4) years in prison.
Analysis and Determination
I have considered the application, noting that the same is not opposed by the respondent, who failed to submit on the same, as at the time of making this determination. Indeed, Article 50 (2) (p) (q) of the COK gives the Court the general power to review the decisions of the subordinate courts;
...
“(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
Equally, this court’s revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code .
“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.”
Regarding the 1 st applicant, his Sentence Review report dated 15 th May, 2025 was positive. The probation officer noted that the applicant was the sole breadwinner of his family of three (3) children with the youngest being one (1) year and still breastfeeding. Further, that applicant had enrolled in tailoring classes during his stay in prison. The prison officer in charge indicated that the 1 st applicant had transformed into a good citizen as he takes the liberty to tutor other prisoners in spiritual and tailoring matters.
Similarly, the 2 nd applicant, his Sentence Review report dated 7 th April, 2025 was positive. It was reported that he is married with seven (7) children two (2) of whom lived with the 2 nd applicant in Mombasa. That, he has be commendably engaged in teaching his fellow inmates CBC curriculum from grade 1 to 8, together with the prison officers, and doubles up as a motivational speaker.
It was thus recommended that a 6-months’ probation service would be suitable for the applicants.
In Kimutai vs Republic [2024] KEHC 6871 (KLR) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -
Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.
Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
Protection of the community: - where the offender is likely to pose a threat to the community.
Offender’s responsibility to third parties: - where there are people depending on the offender.
Further, in the case of Republic v Felix Madalitso Keke Confirmation Appeal No. 404 of 2010 (unreported) where the court held as follows:
“Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in the public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in society''s continuum."
In the instance the applicants were charged, convicted and sentenced with the offence of store breaking and stealing contrary to Section 306 (a) of the Penal Code. The particulars are that on 22 nd October, 2024 at about 2200hrs at Mombasa Law Courts in Mvita sub-county within Mombasa County, broke into the Procurement store and stole 10 reams of printing papers of kshs.10,000/- the property of Mombasa Law Courts.
Section 306 of the Penal Code provides as follows:
Any person who
(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or
(b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years .
From the onset the offense is not a misdemeanor. However, it is not lost to me that the applicants from the onset confessed the offence in writing and admitted their guilt, and thereby pleaded for mercy and forgiveness.
In my view, the applicants’ admission and confession of their faults, not only on arrest, trial but in the present application, demonstrates remorse and a realization of their wayward ways.
For what is worth, among the prime objectives of the criminal law is imposition of appropriate adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the way the crime is done. whereas there is no straight blanket formula for sentencing an accused person on proof of crime, the courts have adopted the twin objectives as deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the court must keep in mind the gravity of the crime, motive for the crime nature of the offence and all other attendance circumstances.
In this instance, noting the circumstances herein and their factual realities to the end that the printing papers were worth kshs.10,000/- and were duly recovered, I am of the view that there are cases such as this where, a non-custodial sentence best fits such offenders. Further, the applicant’s have averaged eight (8) months in prison, as at the date of making this determination. I believe that the applicants’ short stint in custody have taught them a lesson or two and there is need for continued counseling and guidance and some community service. I believe the non-custodial sentence will go a long way in trying to achieve the objectives of sentencing.
This court is further guided by the Sec 3 of the Community Service Orders Act which makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.
Consequently, the effective measure is to review the trial court sentence, and have the applicants serve a 12-month community service order at the Shanzu Law Courts.
Monthly reports shall be filed in court by the supervisor of the applicants through their respective community service officers from the Kisauni Probation Station, respectively, which shall track progress on the effectiveness of the sentence.
In the instance of breach of any conditions by the applicants shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24TH…...day of….SEPTEMBER..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT...........................
FOR THE RESPONDENT.....MR SIRIMA........................
COURT ASSISTANT........MS BEBORA...........................
'
(Revision of sentence in Criminal Case No. E958 of 2024 at the Chief Magistrates Court Shanzu on 30 th April, 2025 by Hon. A. Mwicigi (CM)
The applicants seek a review of their four (4) year custodial sentence and the same be commuted to a non-custodial sentence served on probation.
The applicants were arrested, charged, convicted and sentenced to four (4) years imprisonment in C.M.’s Court at Mombasa CR. CASE No. E598 of 2024 for the offence of Store Breaking and Stealing contrary to Section 306 (a) of the Penal Code.
That, upon arrest they readily admitted and recorded their confessions before the recording officer, No. 237588, Chief Inspector Geoffrey Cheruiyot. During plea taking the facts and information of the offence was narrated and explained to the applicants to which they conceded the facts were correct and true, at which point they were convicted on their own admission of the offence and plea of guilty.
Thereafter, the trial court considered their pre-sentencing reports and, in its discretion, sentenced them both to four (4) years in prison.
Analysis and Determination
I have considered the application, noting that the same is not opposed by the respondent, who failed to submit on the same, as at the time of making this determination. Indeed, Article 50 (2) (p) (q) of the COK gives the Court the general power to review the decisions of the subordinate courts;
...
“(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
Equally, this court’s revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code .
“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.”
Regarding the 1 st applicant, his Sentence Review report dated 15 th May, 2025 was positive. The probation officer noted that the applicant was the sole breadwinner of his family of three (3) children with the youngest being one (1) year and still breastfeeding. Further, that applicant had enrolled in tailoring classes during his stay in prison. The prison officer in charge indicated that the 1 st applicant had transformed into a good citizen as he takes the liberty to tutor other prisoners in spiritual and tailoring matters.
Similarly, the 2 nd applicant, his Sentence Review report dated 7 th April, 2025 was positive. It was reported that he is married with seven (7) children two (2) of whom lived with the 2 nd applicant in Mombasa. That, he has be commendably engaged in teaching his fellow inmates CBC curriculum from grade 1 to 8, together with the prison officers, and doubles up as a motivational speaker.
It was thus recommended that a 6-months’ probation service would be suitable for the applicants.
In Kimutai vs Republic [2024] KEHC 6871 (KLR) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -
Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.
Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
Protection of the community: - where the offender is likely to pose a threat to the community.
Offender’s responsibility to third parties: - where there are people depending on the offender.
Further, in the case of Republic v Felix Madalitso Keke Confirmation Appeal No. 404 of 2010 (unreported) where the court held as follows:
“Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in the public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in society''s continuum."
In the instance the applicants were charged, convicted and sentenced with the offence of store breaking and stealing contrary to Section 306 (a) of the Penal Code. The particulars are that on 22 nd October, 2024 at about 2200hrs at Mombasa Law Courts in Mvita sub-county within Mombasa County, broke into the Procurement store and stole 10 reams of printing papers of kshs.10,000/- the property of Mombasa Law Courts.
Section 306 of the Penal Code provides as follows:
Any person who
(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or
(b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years .
From the onset the offense is not a misdemeanor. However, it is not lost to me that the applicants from the onset confessed the offence in writing and admitted their guilt, and thereby pleaded for mercy and forgiveness.
In my view, the applicants’ admission and confession of their faults, not only on arrest, trial but in the present application, demonstrates remorse and a realization of their wayward ways.
For what is worth, among the prime objectives of the criminal law is imposition of appropriate adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the way the crime is done. whereas there is no straight blanket formula for sentencing an accused person on proof of crime, the courts have adopted the twin objectives as deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the court must keep in mind the gravity of the crime, motive for the crime nature of the offence and all other attendance circumstances.
In this instance, noting the circumstances herein and their factual realities to the end that the printing papers were worth kshs.10,000/- and were duly recovered, I am of the view that there are cases such as this where, a non-custodial sentence best fits such offenders. Further, the applicant’s have averaged eight (8) months in prison, as at the date of making this determination. I believe that the applicants’ short stint in custody have taught them a lesson or two and there is need for continued counseling and guidance and some community service. I believe the non-custodial sentence will go a long way in trying to achieve the objectives of sentencing.
This court is further guided by the Sec 3 of the Community Service Orders Act which makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.
Consequently, the effective measure is to review the trial court sentence, and have the applicants serve a 12-month community service order at the Shanzu Law Courts.
Monthly reports shall be filed in court by the supervisor of the applicants through their respective community service officers from the Kisauni Probation Station, respectively, which shall track progress on the effectiveness of the sentence.
In the instance of breach of any conditions by the applicants shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24TH…...day of….SEPTEMBER..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT...........................
FOR THE RESPONDENT.....MR SIRIMA........................
COURT ASSISTANT........MS BEBORA...........................
'