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 2/2/2024 for the offence of house breaking contrary to section 304(1)(b) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya that on 26/1/2024 about 0730 Hours at Kona ya Jara area in Likoni Sub-County within Mombasa County broke and entered a dwelling house of Badi Hinzano Mumba and stole from therein a Vitrone woofer valued at KShs 15,000/=, a suitcase valued at KShs 4,000/=, a complete 6KGs Sea Gas valued at KShs 4,500/=, all valued at KShs 23,500/= the property of Badi Hinzano Mumba. The suitcase was later while broken from the offender who had been seen by a neighbour leaving the complainant’s house with it. The applicant pleaded guilty to the charge and was convicted and sentenced to a fine of KShs 50,000/= in default to serve 12 months’ imprisonment.
3. 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.”
4. 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.”
5. 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.”
6. 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) …
7. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
8. Before sentencing, the prosecution informed the court that the applicant had no previous record of conviction. In mitigation, the applicant said he was sorry.
9. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence. It is always desirable to do so even if not mandatory.
10. The sentence review report filed herein by Miss Jeria Oara, Probation officer indicates that the offender is suitable for sentence review to a non-custodial term and recommends community service.
11. 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. All the same the sentence passed herein by the trial court is not excessive considering the gravity of the offences and that the charge has two limbs. I note that there were no aggravating circumstances such as how the break-in was done.
12. Considering the circumstances of the offence and the favourable sentence review report I find that this is a case deserving of a sentence review.
13. The applicant has been in custody for slightly over 9½ months from the date of his arrest on 29/1/2024. He is due to complete his default term on 10/6/2025. I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed. I believe that the period so far served in prison is 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 in default of fine is reviewed and substituted with a commitment for him to serve community service for 6 months at Mtongwe Chief’s office. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
14. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th November 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 2/2/2024 for the offence of house breaking contrary to section 304(1)(b) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya that on 26/1/2024 about 0730 Hours at Kona ya Jara area in Likoni Sub-County within Mombasa County broke and entered a dwelling house of Badi Hinzano Mumba and stole from therein a Vitrone woofer valued at KShs 15,000/=, a suitcase valued at KShs 4,000/=, a complete 6KGs Sea Gas valued at KShs 4,500/=, all valued at KShs 23,500/= the property of Badi Hinzano Mumba. The suitcase was later while broken from the offender who had been seen by a neighbour leaving the complainant’s house with it. The applicant pleaded guilty to the charge and was convicted and sentenced to a fine of KShs 50,000/= in default to serve 12 months’ imprisonment.
3. 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.”
4. 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.”
5. 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.”
6. 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) …
7. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
8. Before sentencing, the prosecution informed the court that the applicant had no previous record of conviction. In mitigation, the applicant said he was sorry.
9. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence. It is always desirable to do so even if not mandatory.
10. The sentence review report filed herein by Miss Jeria Oara, Probation officer indicates that the offender is suitable for sentence review to a non-custodial term and recommends community service.
11. 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. All the same the sentence passed herein by the trial court is not excessive considering the gravity of the offences and that the charge has two limbs. I note that there were no aggravating circumstances such as how the break-in was done.
12. Considering the circumstances of the offence and the favourable sentence review report I find that this is a case deserving of a sentence review.
13. The applicant has been in custody for slightly over 9½ months from the date of his arrest on 29/1/2024. He is due to complete his default term on 10/6/2025. I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed. I believe that the period so far served in prison is 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 in default of fine is reviewed and substituted with a commitment for him to serve community service for 6 months at Mtongwe Chief’s office. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
14. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th November 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.