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JudgmentEUGENE WAMALWA VS The Republic3 min read

EUGENE WAMALWA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NUMBER E1594 0F 2018 IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA (HON. E. A NYALOTI C.M AND CRIMINAL APPEAL NO. E047 OF 2021 BY LADY JUSTICE A. ONG’INJO J.)

RULING

  1. This Court is being called to determine the Notice of Motion , by the Applicant, dated 6th February, 2024 seeking among other prayers for the review of the sentence in CRIMINAL CASE NUMBER E1594 0F 2018 IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA. The application was supported by an affidavit where the Applicant implored the Honourable Court to consider him for a non – custodial sentence after reviewing his sentence. He averred that he had spent 5 years and 2 months in custody by the time of filing his application in February 2024
  2. The Applicant was found guilty on the offence of Rape contrary to Section 3(1)(a)(b) as read with Section 3 of the Sexual Offences Act, the offence of personation contrary to Section 38(1) as read with Section 36 of the Penal Code and the offence Resisting lawful arrest contrary to Section 254(b) of the Penal Code and sentenced to 8 years’ imprisonment on 14th May, 2020.
  3. A sentence review report dated 8th October, 2024 by Stephen Muthoka intimated that he was remorseful and regretted his actions and prayed for mercy from this Honourable Court and forgiveness from the victims who he said had lied on his marital status. He had no record of prison misconduct and commits to respect the law and behave responsibly when released from prison. He had been mentioned by his new authorities to be a trustworthy person who has been eager for release.
  4. It was contended that the inmate was agreeable to perform unpaid community work for the remainder of his prison eight  (8) months sentence, and prayed for leniency and consideration for community service. His earliest release date from the prison records was (EPD) is 18th May, 2025.
  5. The officer recommended the inmate was suitable for a non – custodial sentence. With no known permanent residence in Mombasa and a fixed place of abode in Bungoma. For effective rehabilitation and supervision this Honourable Court may review this sentence to serve a probation sentence for the remainder of his eight (8) months or otherwise that court may consider fit.

Analysis and Determination

  1. Article 50 of the Constitution of Kenya provides for the rights of an accused person as follows: -

(2) Every accused person has the right to a fair trial, which included the right-

(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law. (emphasis mine)

  1. This Court’s powers to review sentences are premised on Article 165 of the Constitution and section 362 of the Criminal procedure Code which provide as follows: -

Article 1651.

        1. 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.

Criminal Procedure Code362.

362. Power of the High Court to Call for Records

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. (Emphasis mine)

  1. Section 364 of the Criminal Procedure Code outlines the powers of the High Court under article 165 of the Constitution and section 362 of the Criminal Procedure Code and states how the powers are to be exercised. In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence. In the case of any other order other than an order of acquittal, alter or reverse the order.
  2. Having said that much, I considered the Sentence Review Report I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with a probation sentence for two years to be organized by the Probation office with their colleagues in Bungoma in any of the probation offices or chief offices around Bungoma town.
  3. The review is under the on going de congestion exercise and the Accused person is advised to strictly comply with the directions of the probation officers.
  4. It is so ordered.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……31ST.…………DAY OF ……………OCTOBER…………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant

    EUGENE WAMALWA VS The Republic EUGENE WAMALWA VS The Republic