(From original Conviction and sentence on Criminal Case NO.E1396 of 2024 at Chief Magistrate court by Hon. D. ODHIAMBO on a judgment dated and delivered on 15th August 2024 at Mombasa.)
ISMAIL SHABAN ABDALA was charged with HOUSE BREAKING CONTRARY TO SECTION 304 (1) AS READ WITH SECTION 279 (B) OF THE PENAL CODE.
On 06/08/24, He PLEADED GUILTY to the charge and he was sentenced to serve 7 years in prison.
He moved to this court for a review of his sentence. The grounds raised are:
MITIGATION GROUNDS
THAT, he was a first offender and hence begS for forgiveness promising to remain a law abiding citizen out here.
THAT he pleaded guilty and he was very remorseful and the court ought to have taken that into account
That the court did not consider his mitigation and meted out the maximum sentence despite his plea of guilty and expression of remourse.
That the sentence which was imposed on him did not consider peculiar circumstances of his case in order to arrive at an appropriate sentence informed by those circumstances
. That the plea of guilty entered right from the start of the trial was a crucial mitigating factor since it saved courts humbly time. The applicant was therefore entitled to the benefit of least punitive sentence enshrined in Article 50(2) (p) of the constitution.
That the mitigation which he offered during the trial process was just a superfluous exercise, because it did not affect the sentence even if it dictated a lesser punishment than the one stated by the relevant law.
THAT, though the 7 years’ sentence imposed upon him is within the preferred sentence for the offence of house breaking as prescribed by law, he still feels that it is harsh.
THAT, he begs this honorable court for leniency
Indeed, under SECTION 279 (b) of THE PENAL CODE , the sentence for house breaking is 7 in prison
I however note that the applicant was a first offender and he indeed pleaded guilty.
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
(a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
(b) Criminal history of the offender: - Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
(c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
(d)Protection of the community: - where the offender is likely to pose a threat to the community.
(e) Offender’s responsibility to third parties: - where there are people depending on the offender.
(f) Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
10. Sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law.
11. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender.
12. Article 25 (a) of the Constitution deals with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence.
13. It is also clear from the objectives and principles of sentencing, that the applicant being a first offender and since he also entered a plea of guilty to the offence, that
should count for something to reduce his or her sentence.
14. The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender.
15. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8.1 &8.2 (a-m) which provide inter-alia
Verbal sanctions, such as admonition, reprimand and warning
Conditional discharge
Status Penalties
Economic sanction and monetary penalties, such as fines and day-fines
Confiscation or an expropriation order
Restitution to the victim or a compensation order
Suspended or differed sentence
Probation and judicial supervision
A community service order
Referral to an attendance center
House arrest
Any other mode of non-institutional treatment, or
Some combination of these measures.
16. In this case the applicant pleaded guilty saving the court precious judicial time and he was remorseful .Under the sentencing policy guidelines The trial Court ought to have taken into account such mitigating circumstances. They did not do so.
17. Accordingly, I revise the sentence from a Prison Term of 7 years to 3 years imprisonment, starting from the day he was convicted which is 06/08/2024.
It is so ordered
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS … ….25th…………DAY OF ………JUNE ………………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence
Mr. SIRIMA FOR THE REPUBLIC
The Applicant in person
MS BEBORA ct assistant
ISMAIL SHABAN ABDALA was charged with HOUSE BREAKING CONTRARY TO SECTION 304 (1) AS READ WITH SECTION 279 (B) OF THE PENAL CODE.
On 06/08/24, He PLEADED GUILTY to the charge and he was sentenced to serve 7 years in prison.
He moved to this court for a review of his sentence. The grounds raised are:
MITIGATION GROUNDS
THAT, he was a first offender and hence begS for forgiveness promising to remain a law abiding citizen out here.
THAT he pleaded guilty and he was very remorseful and the court ought to have taken that into account
That the court did not consider his mitigation and meted out the maximum sentence despite his plea of guilty and expression of remourse.
That the sentence which was imposed on him did not consider peculiar circumstances of his case in order to arrive at an appropriate sentence informed by those circumstances
. That the plea of guilty entered right from the start of the trial was a crucial mitigating factor since it saved courts humbly time. The applicant was therefore entitled to the benefit of least punitive sentence enshrined in Article 50(2) (p) of the constitution.
That the mitigation which he offered during the trial process was just a superfluous exercise, because it did not affect the sentence even if it dictated a lesser punishment than the one stated by the relevant law.
THAT, though the 7 years’ sentence imposed upon him is within the preferred sentence for the offence of house breaking as prescribed by law, he still feels that it is harsh.
THAT, he begs this honorable court for leniency
Indeed, under SECTION 279 (b) of THE PENAL CODE , the sentence for house breaking is 7 in prison
I however note that the applicant was a first offender and he indeed pleaded guilty.
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
(a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
(b) Criminal history of the offender: - Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
(c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
(d)Protection of the community: - where the offender is likely to pose a threat to the community.
(e) Offender’s responsibility to third parties: - where there are people depending on the offender.
(f) Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
10. Sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law.
11. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender.
12. Article 25 (a) of the Constitution deals with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence.
13. It is also clear from the objectives and principles of sentencing, that the applicant being a first offender and since he also entered a plea of guilty to the offence, that
should count for something to reduce his or her sentence.
14. The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender.
15. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8.1 &8.2 (a-m) which provide inter-alia
Verbal sanctions, such as admonition, reprimand and warning
Conditional discharge
Status Penalties
Economic sanction and monetary penalties, such as fines and day-fines
Confiscation or an expropriation order
Restitution to the victim or a compensation order
Suspended or differed sentence
Probation and judicial supervision
A community service order
Referral to an attendance center
House arrest
Any other mode of non-institutional treatment, or
Some combination of these measures.
16. In this case the applicant pleaded guilty saving the court precious judicial time and he was remorseful .Under the sentencing policy guidelines The trial Court ought to have taken into account such mitigating circumstances. They did not do so.
17. Accordingly, I revise the sentence from a Prison Term of 7 years to 3 years imprisonment, starting from the day he was convicted which is 06/08/2024.
It is so ordered
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS … ….25th…………DAY OF ………JUNE ………………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence
Mr. SIRIMA FOR THE REPUBLIC
The Applicant in person
MS BEBORA ct assistant