(Originating from Cr. E 0990/024 at Mombasa Law courts)
EDWARD MAKUGE ENDAMBO was charged with STEALING MOTOR VEHICLE CONTRARY TO SECTION 268(1) AS READ WITH SECTION 278 (A) OF THE PENAL CODE.
On 27/05/24, He PLEADED GUILTY to the charge and he was sentenced to serve 7 years in prison.
PARTICULARS OF OFFENCE: On the 17 th day of May 2024, at around 1700hrs at Kaa Chonjo Tuktuk stage within Mombasa County, stole Motor Vehicle – TUKTUK Reg. No. KTWC 865H , make PIAGGIO yellow in colour valued at ksh 300,000/=, the property of MONICA SIMON MALI
He moved to this court for a review of his sentence. The grounds raised are:
MITIGATION GROUNDS
THAT, he was a first offender and hence begs for forgiveness promising to remain a law abiding citizen out here.
THAT, he was a family man with a wife and children who solely depend on him.
THAT, though the 7 years’ sentence imposed upon him is within the preferred sentence for the offence of house breaking as prescribed by law, he still feels that it is harsh.
THAT, he begs this honorable court for leniency
Indeed, under SECTION 278 (A) of THE PENAL CODE , the sentence for stealing a motor vehicle is 7 years’ imprisonment.
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
(a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
(b) Criminal history of the offender: - Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
(c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
(d)Protection of the community: - where the offender is likely to pose a threat to the community.
(e) Offender’s responsibility to third parties: - where there are people depending on the offender.
(f) Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
Turning to the issue of sentence the court wants to remind itself and the Lower Court that sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender.
The constitution 2010 also enacted Article 25 (a) dealing with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence. In some also as a matter of principle in sentencing any verdict, sanction or punishment must be proportionate to the crime for which the accused person has been convicted. It is also clear from the objectives and principles of sentencing, that the accused being a first offender or has entered a plea of guilty to the offence should count for something to reduce his or her sentence. Generally, for first offenders, it is very unlikely that if they are placed on non-custodial sentence they would be re-offending hence impacting negatively public law and order in our communities.
The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8.1 &8.2 (a-m) which provide inter-alia
Verbal sanctions, such as admonition, reprimand and warning
Conditional discharge
Status Penalties
Economic sanction and monetary penalties, such as fines and day-fines
Confiscation or an expropriation order
Restitution to the victim or a compensation order
Suspended or differed sentence
Probation and judicial supervision
A community service order
Referral to an attendance center
House arrest
Any other mode of non-institutional treatment, or
Some combination of these measures.
Just as the offender’s person need and interests have to be weighed against society’s interest at the pre-trial stage, so the offenders “rehabilitative needs” at the sentencing stage must be balanced against eh need to protect society and “the interests of the victim the list of non-custodial measures in Rule 8.2 while not exhaustive, contains a wide range of non-custodial measures to suit different circumstances and achieve different objectives
In this case the applicant was a first offender, he pleaded guilty hence saving precious judicial time and was remorseful. Under the sentencing policy guidelines the Court trial ought to have taken into account such mitigating circumstances. They did not do so and meted the maximum sentence.
Accordingly, I revise the sentence from a Prison Term of 7 years and reduce it to 3 years’ imprisonment, starting from the day he was convicted which is 27/05/24.
It is so ordered
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS … ….25th…………DAY OF ………JUNE ………………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr.Sirima……State Presecution Counsel;
The Applicant in person
EDWARD MAKUGE ENDAMBO was charged with STEALING MOTOR VEHICLE CONTRARY TO SECTION 268(1) AS READ WITH SECTION 278 (A) OF THE PENAL CODE.
On 27/05/24, He PLEADED GUILTY to the charge and he was sentenced to serve 7 years in prison.
PARTICULARS OF OFFENCE: On the 17 th day of May 2024, at around 1700hrs at Kaa Chonjo Tuktuk stage within Mombasa County, stole Motor Vehicle – TUKTUK Reg. No. KTWC 865H , make PIAGGIO yellow in colour valued at ksh 300,000/=, the property of MONICA SIMON MALI
He moved to this court for a review of his sentence. The grounds raised are:
MITIGATION GROUNDS
THAT, he was a first offender and hence begs for forgiveness promising to remain a law abiding citizen out here.
THAT, he was a family man with a wife and children who solely depend on him.
THAT, though the 7 years’ sentence imposed upon him is within the preferred sentence for the offence of house breaking as prescribed by law, he still feels that it is harsh.
THAT, he begs this honorable court for leniency
Indeed, under SECTION 278 (A) of THE PENAL CODE , the sentence for stealing a motor vehicle is 7 years’ imprisonment.
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
(a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
(b) Criminal history of the offender: - Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
(c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
(d)Protection of the community: - where the offender is likely to pose a threat to the community.
(e) Offender’s responsibility to third parties: - where there are people depending on the offender.
(f) Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
Turning to the issue of sentence the court wants to remind itself and the Lower Court that sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender.
The constitution 2010 also enacted Article 25 (a) dealing with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence. In some also as a matter of principle in sentencing any verdict, sanction or punishment must be proportionate to the crime for which the accused person has been convicted. It is also clear from the objectives and principles of sentencing, that the accused being a first offender or has entered a plea of guilty to the offence should count for something to reduce his or her sentence. Generally, for first offenders, it is very unlikely that if they are placed on non-custodial sentence they would be re-offending hence impacting negatively public law and order in our communities.
The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8.1 &8.2 (a-m) which provide inter-alia
Verbal sanctions, such as admonition, reprimand and warning
Conditional discharge
Status Penalties
Economic sanction and monetary penalties, such as fines and day-fines
Confiscation or an expropriation order
Restitution to the victim or a compensation order
Suspended or differed sentence
Probation and judicial supervision
A community service order
Referral to an attendance center
House arrest
Any other mode of non-institutional treatment, or
Some combination of these measures.
Just as the offender’s person need and interests have to be weighed against society’s interest at the pre-trial stage, so the offenders “rehabilitative needs” at the sentencing stage must be balanced against eh need to protect society and “the interests of the victim the list of non-custodial measures in Rule 8.2 while not exhaustive, contains a wide range of non-custodial measures to suit different circumstances and achieve different objectives
In this case the applicant was a first offender, he pleaded guilty hence saving precious judicial time and was remorseful. Under the sentencing policy guidelines the Court trial ought to have taken into account such mitigating circumstances. They did not do so and meted the maximum sentence.
Accordingly, I revise the sentence from a Prison Term of 7 years and reduce it to 3 years’ imprisonment, starting from the day he was convicted which is 27/05/24.
It is so ordered
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS … ….25th…………DAY OF ………JUNE ………………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr.Sirima……State Presecution Counsel;
The Applicant in person