1. This matter is placed before this court for review of sentence under Article 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, 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 was convicted and sentenced by the Magistrate’s Court at Mombasa on 10/6/2024 for the offence of threatening to kill contrary to section 223(1) of the Penal Code that on 25/4/2024 at Central police station in Mombasa Mvita Sub-County within Mombasa County he threatened to kill Felix Omondi Atuk by saying “kwa cell nitatoka na huwa tunakutana ferry na nimekuhakikishia tutashikana Likoni na nikuue kwa kukudunga kisu.”
3. The applicant pleaded guilty to the charge and was convicted and sentenced to 18 months 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. Article 165(6) and (7) of the Constitution give the High Court supervisory jurisdiction over subordinate courts to call for a 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. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:
“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 such subordinate court.”
7. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) 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—
(a) 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;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
8. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
9. The facts recorded by the trial court at plea taking were that, the applicant and the complainant in the case were in custody at Central police station, Mombasa both having been arrested for the offence of stealing when the applicant uttered the threatening words.
10. Before sentencing, the prosecution informed the court that the applicant had no previous record of conviction. In mitigation, the applicant said he was sorry and had uttered the words recklessly and that he was a parent. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
11. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the applicant. The victim said that the offender was not known to him before as they had only met when the two were arrested for the offence of theft that landed both of them in custody. He expressed fears that the offender might make good his threats against him. It would appear that this was the main reason for the offender getting a custodial sentence.
12. The Probation officer did not file a sentence review report but only indicated that the offence was not suitable for a non-custodial sentence.
13. It is not correct that the offence of threatening to kill is suitable for a non-custodial sentence.
14. Section 223 of the Penal Code (Cap. 63) which creates the offence states that:
“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.
15. Although the offence is a felony with a severe punishment, the same is not a minimum mandatory sentence. The circumstances under which it was committed have to be considered.
16. Article 165(7) of the Constitution provides that in exercise of its supervisory mandate, the High Court may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Fair administration of justice, requires that a sentence be commensurate to the facts of the case. I note that there were no aggravating circumstances save that the words ere uttered while the offender was under police custody.
17. Considering the circumstances of the offence, the sentence review report and the young age of the applicant, I find that this is a case deserving of a sentence review.
18. The applicant has been in custody for slightly over 6½ months from the date of his arrest on 25/4/2024. I consider the custodial sentence so far served to be sufficient to enable him understand that breaking the law attracts dire consequences. Consequently, this court now directs that the applicant’s remaining term of imprisonment is reviewed and substituted with a commitment to for him to serve community service for 6 months at Likoni police station. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
19. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
2. The applicant was convicted and sentenced by the Magistrate’s Court at Mombasa on 10/6/2024 for the offence of threatening to kill contrary to section 223(1) of the Penal Code that on 25/4/2024 at Central police station in Mombasa Mvita Sub-County within Mombasa County he threatened to kill Felix Omondi Atuk by saying “kwa cell nitatoka na huwa tunakutana ferry na nimekuhakikishia tutashikana Likoni na nikuue kwa kukudunga kisu.”
3. The applicant pleaded guilty to the charge and was convicted and sentenced to 18 months 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. Article 165(6) and (7) of the Constitution give the High Court supervisory jurisdiction over subordinate courts to call for a 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. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:
“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 such subordinate court.”
7. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) 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—
(a) 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;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
8. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
9. The facts recorded by the trial court at plea taking were that, the applicant and the complainant in the case were in custody at Central police station, Mombasa both having been arrested for the offence of stealing when the applicant uttered the threatening words.
10. Before sentencing, the prosecution informed the court that the applicant had no previous record of conviction. In mitigation, the applicant said he was sorry and had uttered the words recklessly and that he was a parent. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
11. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the applicant. The victim said that the offender was not known to him before as they had only met when the two were arrested for the offence of theft that landed both of them in custody. He expressed fears that the offender might make good his threats against him. It would appear that this was the main reason for the offender getting a custodial sentence.
12. The Probation officer did not file a sentence review report but only indicated that the offence was not suitable for a non-custodial sentence.
13. It is not correct that the offence of threatening to kill is suitable for a non-custodial sentence.
14. Section 223 of the Penal Code (Cap. 63) which creates the offence states that:
“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.
15. Although the offence is a felony with a severe punishment, the same is not a minimum mandatory sentence. The circumstances under which it was committed have to be considered.
16. Article 165(7) of the Constitution provides that in exercise of its supervisory mandate, the High Court may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Fair administration of justice, requires that a sentence be commensurate to the facts of the case. I note that there were no aggravating circumstances save that the words ere uttered while the offender was under police custody.
17. Considering the circumstances of the offence, the sentence review report and the young age of the applicant, I find that this is a case deserving of a sentence review.
18. The applicant has been in custody for slightly over 6½ months from the date of his arrest on 25/4/2024. I consider the custodial sentence so far served to be sufficient to enable him understand that breaking the law attracts dire consequences. Consequently, this court now directs that the applicant’s remaining term of imprisonment is reviewed and substituted with a commitment to for him to serve community service for 6 months at Likoni police station. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
19. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.