The offender herein Kahindi Charo Chengo was charged with stealing by servant contrary to section 268(1) as read with section 281 of the Penal Code (Cap. 63) Laws of Kenya that as a sales representative he stole cash KShs 159,470/= the property of Westmainland Distributors Ltd which came into his possession by virtue of his employment. He was sentenced to pay a fine of KShs 100,000/= in default to serve 18 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 suitable for a non-custodial sentence and could be placed on probation.
The offender has been in custody for slightly over 11 months from the date of his arrest on 11/1/2024. He is due to complete his default term on 10/6/2025. However, the default term of 18 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 50,000/= and above where no other default term is provided is 12 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 12 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 Nasra Ibrahim Probation officer dated 19/9/2024 also recommends that the offender is suitable for sentence review and recommends probation.
Considering the circumstances of the offence and the favourable pre-sentence and sentence review reports I find that this is a case deserving of a sentence review.
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 21 days at a place to be appointed by the Probation officer. 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 suitable for a non-custodial sentence and could be placed on probation.
The offender has been in custody for slightly over 11 months from the date of his arrest on 11/1/2024. He is due to complete his default term on 10/6/2025. However, the default term of 18 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 50,000/= and above where no other default term is provided is 12 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 12 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 Nasra Ibrahim Probation officer dated 19/9/2024 also recommends that the offender is suitable for sentence review and recommends probation.
Considering the circumstances of the offence and the favourable pre-sentence and sentence review reports I find that this is a case deserving of a sentence review.
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 21 days at a place to be appointed by the Probation officer. 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.