The offender herein Jusper Mireri Makori was charged with stealing stealing from the person contrary to section 279(a) of the Penal Code (Cap. 63) Laws of Kenya that as a sales representative he stole a mobile phone, Nokia C22 valued at KShs 28,000/= and cash KShs 2,000/= the property of Sarah Aoko Asiwuo from the said Sarah Aoko Asiwuo. He was sentenced to pay a fine of KShs 30,000/= in default to serve 12 months imprisonment.
I have perused the trial court file and I note that the pre-sentence report filed in court recommended that the offender was unsuitable for a non-custodial sentence.
The offender has been in custody for slightly over 4½ months from the date of his arrest on 29/6/2024. However, the default term of 12 months imprisonment imposed by the trial court was beyond what is allowed by law and thus illegal. Under section 28(2) of the Penal Code the maximum term of imprisonment for a fine of KShs 30,000/= where no other default term is provided is 6 months imprisonment. Thus, the sentence has to be set aside and an appropriate sentence substituted. The default sentence is hereby set aside and substituted with 6 months imprisonment.
I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed.
The sentence review report filed herein by John Dalluh Probation officer also recommends that the offender is not suitable for a non-custodial sentence as he has no fixed place of abode and his family was unresponsive indicating that the phone number he had provided for contact was not correct.
Although both the pre-sentence and sentence review reports were unfavourable for a non-custodial sentence I find that due to his relatively young age the offender can be given the benefit of the doubt that he can reform.
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 an order that he be placed on Community service for 35 days at a place to be appointed by the Probation officer preferably the nearest police station to where he can be traced and supervised. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 21st day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
I have perused the trial court file and I note that the pre-sentence report filed in court recommended that the offender was unsuitable for a non-custodial sentence.
The offender has been in custody for slightly over 4½ months from the date of his arrest on 29/6/2024. However, the default term of 12 months imprisonment imposed by the trial court was beyond what is allowed by law and thus illegal. Under section 28(2) of the Penal Code the maximum term of imprisonment for a fine of KShs 30,000/= where no other default term is provided is 6 months imprisonment. Thus, the sentence has to be set aside and an appropriate sentence substituted. The default sentence is hereby set aside and substituted with 6 months imprisonment.
I consider that his continued stay in custody is an indication that he is unable to raise the fine imposed.
The sentence review report filed herein by John Dalluh Probation officer also recommends that the offender is not suitable for a non-custodial sentence as he has no fixed place of abode and his family was unresponsive indicating that the phone number he had provided for contact was not correct.
Although both the pre-sentence and sentence review reports were unfavourable for a non-custodial sentence I find that due to his relatively young age the offender can be given the benefit of the doubt that he can reform.
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 an order that he be placed on Community service for 35 days at a place to be appointed by the Probation officer preferably the nearest police station to where he can be traced and supervised. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 21st day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.