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 Faki Hamisi Faki was convicted and sentenced by the Magistrate’s Court at Mombasa on 27/2/2024 for the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 2 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. Before sentencing, the prosecution informed the court that the offender had no previous convictions. In mitigation, the offender said he was remorseful and pleaded for lenience. The trial court did call for a pre-sentence report which recommended that the offender be considered for a non-custodial sentence and be placed on community service. In spite of the favourable report, the trial court passed a custodial sentence. However, there is no explanation for the same. Even though sentencing is at the discretion of the trial court, where a pre-sentence report recommends a non-custodial sentence but the court finds otherwise, it is good for the court to give reasons for departing from the recommendation.
8. The sentence review report filed in this court by Ms Jera Oara, Probation Officer on 9/10/2024 indicates that the offender is suitable for a non-custodial sentence and recommends community service.
9. The offender is aged 21 years. He is barely out of childhood. He has been in custody for about 9½ months. His expected date of release is 27/6/2025. The report indicates that he has undergone guiding and counselling while in prison and he is now equipped with life skilss.
10. In view thereof, I find that his case is deserving of review of sentence.
11. Consequently, in exercise of the powers granted to this Court by Article 50(2)(q) and Article 165(6) & (7) of the Constitution and following the directions by the Honourable the Chief Justice to the courts to make efforts to decongest prisons due to overcrowding, it is hereby ordered that the offender’s sentence is reviewed to a term of imprisonment so far served and in lieu of the remainder of the term of imprisonment he is committed to six (6) months community service to be served at Shika Adabu Chief’s office. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.
12. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
2. The applicant Faki Hamisi Faki was convicted and sentenced by the Magistrate’s Court at Mombasa on 27/2/2024 for the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 2 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. Before sentencing, the prosecution informed the court that the offender had no previous convictions. In mitigation, the offender said he was remorseful and pleaded for lenience. The trial court did call for a pre-sentence report which recommended that the offender be considered for a non-custodial sentence and be placed on community service. In spite of the favourable report, the trial court passed a custodial sentence. However, there is no explanation for the same. Even though sentencing is at the discretion of the trial court, where a pre-sentence report recommends a non-custodial sentence but the court finds otherwise, it is good for the court to give reasons for departing from the recommendation.
8. The sentence review report filed in this court by Ms Jera Oara, Probation Officer on 9/10/2024 indicates that the offender is suitable for a non-custodial sentence and recommends community service.
9. The offender is aged 21 years. He is barely out of childhood. He has been in custody for about 9½ months. His expected date of release is 27/6/2025. The report indicates that he has undergone guiding and counselling while in prison and he is now equipped with life skilss.
10. In view thereof, I find that his case is deserving of review of sentence.
11. Consequently, in exercise of the powers granted to this Court by Article 50(2)(q) and Article 165(6) & (7) of the Constitution and following the directions by the Honourable the Chief Justice to the courts to make efforts to decongest prisons due to overcrowding, it is hereby ordered that the offender’s sentence is reviewed to a term of imprisonment so far served and in lieu of the remainder of the term of imprisonment he is committed to six (6) months community service to be served at Shika Adabu Chief’s office. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.
12. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.