(ARISING FROM CRIMINAL CASE NO 20 OF 2012 AT HIGH COURT AT MOMBASA)
This ruling is in relation to the Notice of Motion dated and filed by the Applicant seeking the following prayers: That this application be certified urgent and heard on priority basis expeditiously
That the sentence is reviewed pursuant to Section 364 of the Criminal Procedure Code
Any other orders that the court may deem appropriate in the circumstances.
This is based on the grounds that: The Applicant has been in custody for a period of almost fifteen years. Having served majority of her sentence, she believes that she has reformed and been adequately rehabilitated.
An Offender Management Report prepared by Everlyne M. Kaliti, the Officer-in-Charge at Shimo La Tewa Women’s Prison stated that the Applicant is rehabilitated and reformed. The report states that her character in prison has been exemplary.
Section 4 (2) of the Probation of Offenders Act states as follows: -
(2) Where any person is convicted of an offence by the High Court and the court is of
the opinion that, having regard to the youth, character, antecedents, home
surroundings. health or mental condition of the offender, or to the nature of the
offence, or to any extenuating circumstances in which, the offence was committed, it
is expedient to release the offender on probation, the court may, in lieu of sentencing
him to any punishment, make a probation order.
12. The Sentencing Policy Guidelines of 2016 which stipulates on the
purpose of sentencing that is centered on the rehabilitation or reformation of the
offender
13. he Criminal PrTocedure Code section 216, guides the Honorable
court the need to take into consideration of the accused persons statement before
making any order or judgement.
14. Section 333(2) of the Criminal Procedure Code is also live on the
time spent to be taken into account since arrest to date.
15. The Revised sentencing Policy Guidelines for 2023 clearly guides on
PROBATION ORDERS in section 2.5. A probation order is one which places an
offender under the supervision of a probation officer for not less than six months and
not exceeding three years. An offender is required to comply strictly with the terms
of the probation order the breach of which will attract a range of sanctions outlined
in the Probation of Offenders Act.
16. When deciding on whether to place an offender on probation, Section 4 (i) of the
Probation of Offenders Act calls upon the court to have regard to the following
information, typically contained in a pre-sentence report: i. Age; ii. Character; iii.
Antecedents; iv. Home surroundings; v. Health or mental condition of the offender;
vi. The nature of the offence; vii. The victim impact statement; viii. Any extenuating
circumstances in which the offence was committed; xi. Gravity of the offence: In the
absence of aggravating circumstances, or any other circumstance .
Having considered. circumstances under which the offence was committed, the Sentence Review Report, the fact that the time spent in custody was not factored in the sentence and that the remaining prison period is less than 2 years, I find that the Applicant has served sufficient punishment and has been rehabilatated.
I hereby review the sentence by the trial court and substitute the same with the time spent in custody a 3-year non-custodial probation sentence to facilitate resettlement ane re-intergration into society.
It is so ordered
The file be closed
DATED, SIGNED AND DELIVERED virtually AT MOMBASA THIS 25TH DAY OF JUNE 2025
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF :
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
APPLICANT ABSENT. RULING AND SIGNAL TO BE SENT
This ruling is in relation to the Notice of Motion dated and filed by the Applicant seeking the following prayers: That this application be certified urgent and heard on priority basis expeditiously
That the sentence is reviewed pursuant to Section 364 of the Criminal Procedure Code
Any other orders that the court may deem appropriate in the circumstances.
This is based on the grounds that: The Applicant has been in custody for a period of almost fifteen years. Having served majority of her sentence, she believes that she has reformed and been adequately rehabilitated.
An Offender Management Report prepared by Everlyne M. Kaliti, the Officer-in-Charge at Shimo La Tewa Women’s Prison stated that the Applicant is rehabilitated and reformed. The report states that her character in prison has been exemplary.
Section 4 (2) of the Probation of Offenders Act states as follows: -
(2) Where any person is convicted of an offence by the High Court and the court is of
the opinion that, having regard to the youth, character, antecedents, home
surroundings. health or mental condition of the offender, or to the nature of the
offence, or to any extenuating circumstances in which, the offence was committed, it
is expedient to release the offender on probation, the court may, in lieu of sentencing
him to any punishment, make a probation order.
12. The Sentencing Policy Guidelines of 2016 which stipulates on the
purpose of sentencing that is centered on the rehabilitation or reformation of the
offender
13. he Criminal PrTocedure Code section 216, guides the Honorable
court the need to take into consideration of the accused persons statement before
making any order or judgement.
14. Section 333(2) of the Criminal Procedure Code is also live on the
time spent to be taken into account since arrest to date.
15. The Revised sentencing Policy Guidelines for 2023 clearly guides on
PROBATION ORDERS in section 2.5. A probation order is one which places an
offender under the supervision of a probation officer for not less than six months and
not exceeding three years. An offender is required to comply strictly with the terms
of the probation order the breach of which will attract a range of sanctions outlined
in the Probation of Offenders Act.
16. When deciding on whether to place an offender on probation, Section 4 (i) of the
Probation of Offenders Act calls upon the court to have regard to the following
information, typically contained in a pre-sentence report: i. Age; ii. Character; iii.
Antecedents; iv. Home surroundings; v. Health or mental condition of the offender;
vi. The nature of the offence; vii. The victim impact statement; viii. Any extenuating
circumstances in which the offence was committed; xi. Gravity of the offence: In the
absence of aggravating circumstances, or any other circumstance .
Having considered. circumstances under which the offence was committed, the Sentence Review Report, the fact that the time spent in custody was not factored in the sentence and that the remaining prison period is less than 2 years, I find that the Applicant has served sufficient punishment and has been rehabilatated.
I hereby review the sentence by the trial court and substitute the same with the time spent in custody a 3-year non-custodial probation sentence to facilitate resettlement ane re-intergration into society.
It is so ordered
The file be closed
DATED, SIGNED AND DELIVERED virtually AT MOMBASA THIS 25TH DAY OF JUNE 2025
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF :
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
APPLICANT ABSENT. RULING AND SIGNAL TO BE SENT