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JudgmentDAVID MUTUKU NDUNGANI VS The Republic5 min read

DAVID MUTUKU NDUNGANI 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 26/6/2024 for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code that on 26/5/2024 at Mikanjuni area in Jomvu Sub-County within Mombasa County unlawfully assaulted Valentina Mwaka thereby occasioning her actual bodily harm.
  3. The applicant pleaded guilty to the charge and was convicted and sentenced to 3 years 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. According to the facts recorded by the trial court at plea taking, the applicant is husband of the complainant. On the material day, he arrived home and began acting in a disorderly manner and demanded for “haki yake” but the wife declined. The applicant then descended on her with blows and kicks and even strangled her. The complainant yelled for help and neighbours went to her rescue. According to the P3 form the complainant sustained a left cheek swelling with laceration in the mouth.
  3. Before sentencing, the prosecution informed the court that the applicant was a first offender. In mitigation, the applicant reiterated that he was a first offender and that he acted out of anger. The trial court then did call for a pre-sentence report to assist it in passing an appropriate sentence.
  4. The pre-sentence report was not favourable to the applicant. The victim expressed fears for her life and that of their three children as the applicant had threatened to wipe them out and also take his life or marry another wife. She was not ready to receive him back home or to reconcile. The applicant’s brother also said that the applicant had been in continuous fights with his wife for long and efforts to resolve their differences at family level do not seem to have borne fruits. The differences between the two had escalated to a point of hate and threats where the complainant was not ready to reconcile with the applicant.
  5. The report further indicates that at the time of interview, the applicant was responsive but not consistent. He was however remorseful and appreciated the gravity of the offence.
  6. The sentence review report filed in this court on 16/10/2024 by Nafisa Abdalla Probation Officer from the Probation and Aftercare Service Department as per this court’s directions dated 19/9/2024 requesting for the same now indicates that the applicant is suitable for a non-custodial sentence. He is aged 45 years. He has been in custody for about four months.
  7. The complainant, the applicant’s mother and siblings and the community now support his release from custody. It is indicated that the complainant has reconciled with the applicant, she visits him in custody frequently and she supports his release from custody.
  8. The report further indicates that the applicant is ill in prison. He has a hip injury and walks on crutches. It would have been better if the Probation Officer sought medical documents from the prison authorities to support that assertion and also seek their information on how the applicant came to be in that condition. The Probation Officer has that authority under section 4(2) of the Probation of Offenders Act which provides that:

“A probation officer shall, while acting on the authority of the court, have the right to access records and any other necessary information from any person or authority having such records or information for the purpose of preparing a social inquiry report.”

  1. The report recommends that the applicant may be released on probation.
  2. 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. I note that there were no aggravating circumstances such as serious injury caused to the complainant or use of a weapon. What aggravated the situation and called for a custodial sentence were reports that the applicant constantly threatened to harm the complainant and their children. Those circumstances seem to have changed now with the complainant indicating that she has reconciled with the applicant and she has demonstrated this by constant visits to him in prison. The applicant is also ailing and this calls for better handling of his illness out of prison.
  3. Considering the circumstances of the offence, the sentence review report and the current illness of the applicant, I find that this is a case deserving of a sentence review.
  4. I consider the custodial sentence so far served to be sufficient and now direct that the applicant be and is hereby placed on probation and released to a Probation Officer forthwith to serve 18 months’ probation under the Mombasa Probation and Aftercare department office.
  5. Orders accordingly.

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

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.

    DAVID MUTUKU NDUNGANI VS The Republic DAVID MUTUKU NDUNGANI VS The Republic