'1. This matter is placed before this court for review of sentence. In my understanding the sentence review may be undertaken under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya in conjunction with 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. Article 50(2)(q) of the Constitution of Kenya 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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 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.
S. 364(1)(b) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it is in conformity with the constitutional provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of reformation.
6. This court called for a sentence review report which has been duly filed by the Probation and Aftercare Department.
7. This court is aware that law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference.
8. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults, creating disturbances and the like offences. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
9. The Lower Court file has been placed before this court. I have perused the same and I find the following:
a. Conviction: Malicious damage to property contrary to Section 339(1) of the Penal Code which carries a maximum discretionary sentence of five years’ imprisonment.
b. Particulars of offence: On the 22nd day of May 2024 at around 1830hrs at Mwabungo village in Kinondo Location in Kwale County within Coast Region willfully and unlawfully damaged six boundary beacons the property of Elizaphan Waweru valued at approximately Kshs. 10,000/=.
c. Plea: Not guilty. Full trial.
d. Sentence: Fine of KShs. 40,000/= in default 1½ years’ imprisonment.
e. Criminal record: First offender.
f. Pre-sentence report - Not favourable for a non-custodial sentence as community not ready to accept offender back as being anti-social and habitual thief.
10. Sentence review report – Favourable for sentence review.
11. Recommendation – Offender to be considered for non-custodial sentence of community service.
12. Court: The default sentence of 11/2 years’ imprisonment was illegal for being beyond the maximum default term under the scale prescribed under section 28 of the Penal Code which should be 6 months’ imprisonment.
13. Order:
i. Default sentence of 11/2 years’ imprisonment set aside for being illegal and substituted with a fine of KShs 40,000/= in default to serve six months’ imprisonment.
ii. Offender has served about three months’ imprisonment. He is still in custody meaning he is unable to raise the fine. The balance of three months’ imprisonment is revised to 6 months’ community service at Mandago dispensary.
iii. Offender is released forthwith from custody to Community Service Officer Kwale County for appropriate placement and supervision.
14. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'
2. Article 50(2)(q) of the Constitution of Kenya 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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 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.
S. 364(1)(b) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it is in conformity with the constitutional provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of reformation.
6. This court called for a sentence review report which has been duly filed by the Probation and Aftercare Department.
7. This court is aware that law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference.
8. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults, creating disturbances and the like offences. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
9. The Lower Court file has been placed before this court. I have perused the same and I find the following:
a. Conviction: Malicious damage to property contrary to Section 339(1) of the Penal Code which carries a maximum discretionary sentence of five years’ imprisonment.
b. Particulars of offence: On the 22nd day of May 2024 at around 1830hrs at Mwabungo village in Kinondo Location in Kwale County within Coast Region willfully and unlawfully damaged six boundary beacons the property of Elizaphan Waweru valued at approximately Kshs. 10,000/=.
c. Plea: Not guilty. Full trial.
d. Sentence: Fine of KShs. 40,000/= in default 1½ years’ imprisonment.
e. Criminal record: First offender.
f. Pre-sentence report - Not favourable for a non-custodial sentence as community not ready to accept offender back as being anti-social and habitual thief.
10. Sentence review report – Favourable for sentence review.
11. Recommendation – Offender to be considered for non-custodial sentence of community service.
12. Court: The default sentence of 11/2 years’ imprisonment was illegal for being beyond the maximum default term under the scale prescribed under section 28 of the Penal Code which should be 6 months’ imprisonment.
13. Order:
i. Default sentence of 11/2 years’ imprisonment set aside for being illegal and substituted with a fine of KShs 40,000/= in default to serve six months’ imprisonment.
ii. Offender has served about three months’ imprisonment. He is still in custody meaning he is unable to raise the fine. The balance of three months’ imprisonment is revised to 6 months’ community service at Mandago dispensary.
iii. Offender is released forthwith from custody to Community Service Officer Kwale County for appropriate placement and supervision.
14. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'