'RULING ON DECONGESTION
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, 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 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.”
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 me and I have perused the same and I find the following:
a. Conviction:
i. Count 1: Stealing contrary to Section 268 as read with Section 275 of the Penal Code.
Particulars of offence: On day of 5th day of June, 2025 at Ziwani village Golini Sub-location, Golini location, Matuga Sub-County, Kwale County within Coast Region, stole five water taps valued at Kshs. 5,000/= the property of MWANAISHA KARISA.
ii. Count II: Malicious damage to property contrary to Section 339 of the Penal Code.
iii. Particulars of offence: On the 5th day of June 2025 at 1500 hours at Ziwani village Golini Sub Location, Golini Location in Matuga Sub-County in Kwale County within Coast Region willfully and unlawfully destroyed water taps valued at Kshs. 5,000/= the property of MWAISHA KARISA.
b. Alternative Charge: Handling stolen goods contrary to Section 322(1) as read with Section 322(2) of the Penal Code.
c. Particulars of Offence: On day of 5th day of June 2025 at Ziwani village Golini Sub-location, Golini location, Matuga Sub-County, Kwale County within Coast region, otherwise than in the course of stealing dishonestly retained five water taps knowing or having reason to believe them to be stolen property.
d. Plea: Guilty.
e. Sentence:
i. Count I: A fine of KShs. 10,000/= in default to serve 3 months’ imprisonment.
ii. Count II: A fine of Kshs. 10,000 in default to serve 3 months’ imprisonment.
Sentences were ordered to start from the date of arrest 5th June 2025.
f. Criminal record: First offender as per the prosecution but the sentence review report indicates he is a repeat offender for similar offence of stealing in criminal case No. 419 of 2023 where he attended one-year probation ending on 27th December 2024.
g. Pre-sentence report – None. The trial court did not call for one.
9. Sentence review report – Not favourable for sentence review due to his previous criminal record. Report indicates that his attitude towards rehabilitation is poor.
10. Recommendation – The inmate to complete his sentence in prison for further rehabilitation process to take course.
11. Court: The sentence review report recommends that offender is not suitable for sentence review to a non-custodial sentence. However, I note that he is a petty offender and he completed his probation period without fail. He has served about half of the default prison term. He needs another opportunity to reform while out of prison. The probation department to consider equipping him with skills that can enable him engage in income earning activities so that he does not go back to crime
12. Order: The offender’s sentence is reviewed to provide that for both counts he is placed on probation for a period of two years. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Kwale County Probation Office for appropriate directions on probation
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'
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, 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 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.”
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 me and I have perused the same and I find the following:
a. Conviction:
i. Count 1: Stealing contrary to Section 268 as read with Section 275 of the Penal Code.
Particulars of offence: On day of 5th day of June, 2025 at Ziwani village Golini Sub-location, Golini location, Matuga Sub-County, Kwale County within Coast Region, stole five water taps valued at Kshs. 5,000/= the property of MWANAISHA KARISA.
ii. Count II: Malicious damage to property contrary to Section 339 of the Penal Code.
iii. Particulars of offence: On the 5th day of June 2025 at 1500 hours at Ziwani village Golini Sub Location, Golini Location in Matuga Sub-County in Kwale County within Coast Region willfully and unlawfully destroyed water taps valued at Kshs. 5,000/= the property of MWAISHA KARISA.
b. Alternative Charge: Handling stolen goods contrary to Section 322(1) as read with Section 322(2) of the Penal Code.
c. Particulars of Offence: On day of 5th day of June 2025 at Ziwani village Golini Sub-location, Golini location, Matuga Sub-County, Kwale County within Coast region, otherwise than in the course of stealing dishonestly retained five water taps knowing or having reason to believe them to be stolen property.
d. Plea: Guilty.
e. Sentence:
i. Count I: A fine of KShs. 10,000/= in default to serve 3 months’ imprisonment.
ii. Count II: A fine of Kshs. 10,000 in default to serve 3 months’ imprisonment.
Sentences were ordered to start from the date of arrest 5th June 2025.
f. Criminal record: First offender as per the prosecution but the sentence review report indicates he is a repeat offender for similar offence of stealing in criminal case No. 419 of 2023 where he attended one-year probation ending on 27th December 2024.
g. Pre-sentence report – None. The trial court did not call for one.
9. Sentence review report – Not favourable for sentence review due to his previous criminal record. Report indicates that his attitude towards rehabilitation is poor.
10. Recommendation – The inmate to complete his sentence in prison for further rehabilitation process to take course.
11. Court: The sentence review report recommends that offender is not suitable for sentence review to a non-custodial sentence. However, I note that he is a petty offender and he completed his probation period without fail. He has served about half of the default prison term. He needs another opportunity to reform while out of prison. The probation department to consider equipping him with skills that can enable him engage in income earning activities so that he does not go back to crime
12. Order: The offender’s sentence is reviewed to provide that for both counts he is placed on probation for a period of two years. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Kwale County Probation Office for appropriate directions on probation
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
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