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JudgmentMOHAMED SWALEH MKUNGOMA VS The Republic4 min read

MOHAMED SWALEH MKUNGOMA VS The Republic

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

  1. This matter comes before this court for review of sentence under Article 50(2)(q) and Article 165(6) and (7) of the Constitution 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 was tried, convicted and sentenced by the Magistrate’s Court at Mombasa on 15/8/2024 for the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that on 13/1/2023 atHome Boyz area in Likoni Sub-County within Mombasa County stole a Television valued at KShs 11,500/= the property of Nyangome Nyapara.
  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. The brief facts of the case were that the offender, a garbage collector was spotted by a witness who knew him well, placing the complainant’s television set in a sack and went away with it. The same was not recovered.
  3. Before sentencing, the prosecution informed the court that the offender had no previous records of conviction and may be treated as a first offender. In mitigation, the offender admitted that he had committed the offence and said he was remorseful.
  4. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence. Even as the same is not a requirement of law, the Judiciary Sentencing Policy Guidelines 2023 at paragraph 4.7.7 note that courts routinely request for pre-sentence reports as a guide for the award of both custodial and non-custodial sentences. I believe this is a good practice that should be adopted at all times as the circumstances of the case permit. Such reports are helpful for instance to help the trial court with information concerning the accused person’s and the victim’s present vulnerability of note that is applicable to them directly or connected third parties. The reports also help in cases of sentence review such as the present one for the higher court to appreciate why the offender was given a custodial sentence in the first place.
  5. 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.
  6. In this case, the value of the property stolen is small. The offender has been in custody for about one year and nine months since he was arrested.
  7. The sentence review report filed herein by Miss Atieno Beatrice Otieno, Probation Officer on 9/10/2024 indicates that the offender is suitable for a non-custodial sentence of community service. His sister, although living out of the country is willing to assist the offender in rehabilitation.
  8. The offender expressed regret for his action of committing the offence and prayed to the court for mercy. He committed to obey the law and behave responsibly when released from custody.
  9. The offender’s expected date of release from prison is 26/9/2025. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be. I find that the period served of imprisonment is sufficient for that purpose.
  10. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Likoni Chief’s office for a period of 3 months. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.

Ruling, Dated and Delivered at Mombasa this 5th day of November, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    MOHAMED SWALEH MKUNGOMA VS The Republic MOHAMED SWALEH MKUNGOMA VS The Republic