(ORIGINATING FROM CR. APPLICATION NO. 213 OF 2023 IN THE HIGH COURT OF MOMBASA – HON. A. ONG’INJO)
Brief Facts
The Applicant has applied and asked this Honourable Court to determine through his application dated 10 th February, 2025 to review his sentence and substitute the same being a remainder of two years with a non – custodial sentence.
The Applicant was charged and convicted for the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code and sentenced to serve a thirty five (35) imprisonment which was substituted in Mombasa High Court Criminal Application NO. 141 of 2023 to commence from the date of arrest thus 28 th April, 2004.
A sentence review report dated 14 th May, 2025 by Boytone Omondi indicated that the Applicant was 55 years old; he had two years remaining in his sentence. The Officer stated that the Applicant has been responsible in the family who has been relied upon for sustenance, as he had been a father figure to his children and the extended family members.
The Officer indicated that the family members were receptive of his return home and help him in resettlement and reintegration. They are responsive towards his rehabilitation and are committed to offer him psychosocial support as necessary in the community. In conclusion, the Officer stated that the Applicant had served a considerable time in prison and indicated to have learnt his lesson for the time he has been in custody and commits to live more responsibly in the society. He prayed the Court to consider the period served in custody and to place him on a non – custodial order for the remaining period of his custodial sentence.
According to the officer, the Applicant regretted the offending behavior and asked the Court for forgiveness. He had undergone a wide range of vocational training courses, which had equipped him with technical and social skills to be productive in the society. He also served in various leadership roles that had enabled him to be a role model to others and the roles also helped to shape his life positively among his peers.
The officer indicated that the Applicant was diabetic and hypertensive, lifestyle diseases he had been struggling with for a considerable length of time, with no proper clinical management. He prayed for the Court for a non – custodial order to seek further medical attention. The officer recommended to the Court praying for the Applicant to be considered for a non – custodial sentence for the remainder of his prison term and he recommended a probation order for a period of 2 years.
Issues for Determination
On perusal of the application and the affidavits, the issues for determination herein are twofold:- Whether this Court has jurisdiction to hear and determine this Application?
If so, to determine whether the Applicant is entitled to the orders sought herein.
The Law
It is not disputed that the Applicant filed an Application for review of sentence in CR. APPLICATION NO. 213 OF 2023 IN THE HIGH COURT OF MOMBASA. The Court heard the Application and opined that the sentence should run from the time of the arrest of the Applicant. In my considered view, filing this particular application in this court after another high Court addressed review amounts to a multiplicity of applications which courts must discourage.
The principle of res judicata which is applicable to both civil and criminal cases is alive to issues that were not pleaded and which ought to have been pleaded in the court that was competent to determine those issues. The applicant herein cannot be accorded another opportunity for review of sentence that has already been reviewed by a competent court and a court of equal status.
Be that as it may, I have considered the Sentence Review Report and in the interest of justice, I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with a sentence of the time spent in custody plus a 2 year non-custodial probation sentence to facilitate resettlement and re intergration into the community.
It is so ordered.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……27th.…………DAY OF …………JUNE……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA…………State Counsel;
………………………………………….…Applicant
Brief Facts
The Applicant has applied and asked this Honourable Court to determine through his application dated 10 th February, 2025 to review his sentence and substitute the same being a remainder of two years with a non – custodial sentence.
The Applicant was charged and convicted for the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code and sentenced to serve a thirty five (35) imprisonment which was substituted in Mombasa High Court Criminal Application NO. 141 of 2023 to commence from the date of arrest thus 28 th April, 2004.
A sentence review report dated 14 th May, 2025 by Boytone Omondi indicated that the Applicant was 55 years old; he had two years remaining in his sentence. The Officer stated that the Applicant has been responsible in the family who has been relied upon for sustenance, as he had been a father figure to his children and the extended family members.
The Officer indicated that the family members were receptive of his return home and help him in resettlement and reintegration. They are responsive towards his rehabilitation and are committed to offer him psychosocial support as necessary in the community. In conclusion, the Officer stated that the Applicant had served a considerable time in prison and indicated to have learnt his lesson for the time he has been in custody and commits to live more responsibly in the society. He prayed the Court to consider the period served in custody and to place him on a non – custodial order for the remaining period of his custodial sentence.
According to the officer, the Applicant regretted the offending behavior and asked the Court for forgiveness. He had undergone a wide range of vocational training courses, which had equipped him with technical and social skills to be productive in the society. He also served in various leadership roles that had enabled him to be a role model to others and the roles also helped to shape his life positively among his peers.
The officer indicated that the Applicant was diabetic and hypertensive, lifestyle diseases he had been struggling with for a considerable length of time, with no proper clinical management. He prayed for the Court for a non – custodial order to seek further medical attention. The officer recommended to the Court praying for the Applicant to be considered for a non – custodial sentence for the remainder of his prison term and he recommended a probation order for a period of 2 years.
Issues for Determination
On perusal of the application and the affidavits, the issues for determination herein are twofold:- Whether this Court has jurisdiction to hear and determine this Application?
If so, to determine whether the Applicant is entitled to the orders sought herein.
The Law
It is not disputed that the Applicant filed an Application for review of sentence in CR. APPLICATION NO. 213 OF 2023 IN THE HIGH COURT OF MOMBASA. The Court heard the Application and opined that the sentence should run from the time of the arrest of the Applicant. In my considered view, filing this particular application in this court after another high Court addressed review amounts to a multiplicity of applications which courts must discourage.
The principle of res judicata which is applicable to both civil and criminal cases is alive to issues that were not pleaded and which ought to have been pleaded in the court that was competent to determine those issues. The applicant herein cannot be accorded another opportunity for review of sentence that has already been reviewed by a competent court and a court of equal status.
Be that as it may, I have considered the Sentence Review Report and in the interest of justice, I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with a sentence of the time spent in custody plus a 2 year non-custodial probation sentence to facilitate resettlement and re intergration into the community.
It is so ordered.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……27th.…………DAY OF …………JUNE……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA…………State Counsel;
………………………………………….…Applicant