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JudgmentKHAMISI KITSAO VS The Republic4 min read

KHAMISI KITSAO VS The Republic

High Court at Mombasa High Court · · Andayi W.F.

  1. This matter is placed before me for review of sentence under Article 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, 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. The applicant Khamisi Kitsao was convicted and sentenced by the Magistrate’s Court at Mombasa on 19/9/2024 for the offence of stealing contrary to section 268 as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that on 26/3/2024 at Marikiti area in Mombasa Sub-County within Mombasa County stole one bale of deras worth KShs 78,000/=the property of Mahad Mohamed Aydrus.
  3. In my understanding, review of sentence for purposes of decongestion of prisons may be undertaken under the provisions of Article 50(2)(q) of the Constitution which 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.”

  1. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:

“(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.”

  1. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
  2. A summary of the facts recorded by the trial court at plea taking were that, the complainant gave the offender 3 bales of clothes being deras and lessos for delivery to a bus to be transported to Kilifi. The offender delivered only two. He could not account for one worth KShs 78,000/=. He was arrested and charged.
  3. Before sentencing, the prosecution informed the court that the offender had no previous records of conviction. In mitigation, the offender informed the court that he had nothing to say. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence. Although not mandatory, it is desirable that such a report be called for in order to aid the court to appreciate the personal circumstances of the offender and other persons affected by the offender’s conduct such as the victim and the general community at large in order to inform itself of the appropriate sentence that would be appropriate.
  4. The applicant was sentenced to serve four years’ imprisonment from 16/4/2024.
  5. The sentence review report filed in this court by Rehema Maluki, Probation Officer on 9/10/2024 indicates that the offender is suitable for a non-custodial sentence and can be placed on probation.
  6. The offender is aged 31 years. He has been in custody for about 6½ months from the date of his arrest on 27/3/2024. The report indicates that he regrets the offence.
  7. Article 165(7) of the Constitution provides that in exercise of its supervisory mandate, the High Court may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
  8. In this case, the court passed an excessive and therefore illegal sentence upon the offender of 4 years’ imprisonment when the maximum punishment for the offence is three (3) years imprisonment under section 275 of the Penal Code. For that reason alone, the sentence ought to and is hereby set aside.
  9. Punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system.
  10. However, in view of the illegality of the sentence, the not so high value of the stolen items and the fact that the offender herein has demonstrated remarkable appreciation of his mistake and is ready to be guided through reform I find that his case is deserving of review of sentence.
  11. Consequently, in exercise of the powers granted to this Court by Article 50(2)(q) and Article 165(6) & (7) of the Constitution and following the directions by the Honourable the Chief Justice to the courts to make efforts to decongest prisons due to overcrowding, it is hereby ordered that the offender’s sentence is reviewed to a term of imprisonment so far served and in lieu of the remainder of the term of imprisonment he is placed on probation for a period of 12 months. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.
  12. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities electronically to be given effect immediately.

    KHAMISI KITSAO VS The Republic KHAMISI KITSAO VS The Republic