'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 as read with 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:
“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 is aware 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.
7. 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 and the like offences, creating disturbances. 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. Further
8. The Lower Court file has been placed before this court. I have perused the same and I find the following:
a. Conviction: Principal charge: Stealing contrary to Section 268 as read with Section 275 of the Penal Code.
b. Particulars of offence: On from 9th February 2025 at Kombani market, Waa Location, Matuga Sub-County in Kwale County within Coast region, stole metallic windows, two steel doors and door frames all valued about Kshs. 100,000/= the properties of KWALE COUNTY GOVERNMENT.
c. Alternative Charge: Handling of stolen goods contrary to section 322 (1) as read with Section 322(2) of the Penal Code.
d. Particulars of Alternative Charge: On from 9th February 2025 at Kombani Market, Waa Location, Matuga Sub-County in Kwale County within Coast region, otherwise than in the course of stealing, dishonestly retained two metallic windows, two steel doors and door frames all valued about Kshs. 100,000/= the properties of KWALE COUNTY GOVERNMENT knowing or having reason to believe it to be stolen goods.
e. Plea: Guilty.
f. Sentence: 1-year imprisonment.
g. Criminal record: First offender
h. Pre-sentence report – Not favourable for a non-custodial sentence because he has a repetitive criminal behavior and he lacks remorse or commitment to reform.
9. Sentence review report – Favourable for a sentence review.
10. Recommendation – Offender to be placed on a community service order while undergoing reintegration, rehabilitation and supervision at Kwale Probation Office.
11. Court: The stolen property was recovered and therefore not loss occasioned to the complainant. He has benefitted sufficiently for the prison term served.
12. Order: Sentence of one-year imprisonment is reviewed. Offender to serve remainder of his prison term on community service for 4 months at Mwabungo Primary School.
13. Consequently, offender is released from custody forthwith and handed over to Kwale Community Service office for placement and supervision, unless otherwise lawfully held.
14. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
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2. Article 50(2)(q) of the Constitution of Kenya:
“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 is aware 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.
7. 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 and the like offences, creating disturbances. 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. Further
8. The Lower Court file has been placed before this court. I have perused the same and I find the following:
a. Conviction: Principal charge: Stealing contrary to Section 268 as read with Section 275 of the Penal Code.
b. Particulars of offence: On from 9th February 2025 at Kombani market, Waa Location, Matuga Sub-County in Kwale County within Coast region, stole metallic windows, two steel doors and door frames all valued about Kshs. 100,000/= the properties of KWALE COUNTY GOVERNMENT.
c. Alternative Charge: Handling of stolen goods contrary to section 322 (1) as read with Section 322(2) of the Penal Code.
d. Particulars of Alternative Charge: On from 9th February 2025 at Kombani Market, Waa Location, Matuga Sub-County in Kwale County within Coast region, otherwise than in the course of stealing, dishonestly retained two metallic windows, two steel doors and door frames all valued about Kshs. 100,000/= the properties of KWALE COUNTY GOVERNMENT knowing or having reason to believe it to be stolen goods.
e. Plea: Guilty.
f. Sentence: 1-year imprisonment.
g. Criminal record: First offender
h. Pre-sentence report – Not favourable for a non-custodial sentence because he has a repetitive criminal behavior and he lacks remorse or commitment to reform.
9. Sentence review report – Favourable for a sentence review.
10. Recommendation – Offender to be placed on a community service order while undergoing reintegration, rehabilitation and supervision at Kwale Probation Office.
11. Court: The stolen property was recovered and therefore not loss occasioned to the complainant. He has benefitted sufficiently for the prison term served.
12. Order: Sentence of one-year imprisonment is reviewed. Offender to serve remainder of his prison term on community service for 4 months at Mwabungo Primary School.
13. Consequently, offender is released from custody forthwith and handed over to Kwale Community Service office for placement and supervision, unless otherwise lawfully held.
14. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
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