REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E127 OF 2025
(Coram: Andayi W. F., J.)
MORRIS MAYA………………………..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court during the High Court Leaders’ Conference on 14/4/2025 for review of sentence. The review of sentence is 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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted and sentenced to serve two years imprisonment 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 5/4/2024 at Tudor area in Mvita Sub-County within Mombasa County, stole a lap top valued at KShs 37,000/=, assorted clothes valued at KShs 5,000/= and cash KShs 35,000/= all valued at KSs 77,000/= the property of Stanley Mwadime.
4. The facts of the case were that the complainant took in the offender from the streets and offered him accommodation at his residence. However, the offender turned against the complainant and stole from him.
5. The trial court called for a pre-sentence report but the same was not made available at the time of sentencing. The learned prosecution counsel indicated that the accused person was a first offender. However, the trial court did not take the mitigation by the offender as provided for under section 216 of the Criminal Procedure Code that:
“S. 316. The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.”
6. Although not mandatory, the same is a useful guide for the court in assessing an appropriate sentence for an offender.
7. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender is aged 23 years. He has served 11 months imprisonment and remains to serve 5 months.
8. The offender’s family, specifically his mother, is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence and commits to be law abiding. There are no immediate concerns in the community to his reintegration. The report recommends that he be placed on community service at Tudor Chief’s office under the supervision of the area chief.
9. The learned trial magistrate did not offer any reason why he preferred a prison sentence to a non-custodial sentence given the age of the offender, the low value of the items stolen. The learned trial magistrate would be guided by the Sentencing Police Guidelines which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
10. The circumstances of the offence did not warrant a prison term especially considering the issue of congestion in Kenya’s prison system. I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
11. Accordingly, the offender’s sentence is reviewed. I am satisfied that the period served in prison is sufficient for the offender’s punishment and rehabilitation. Consequently, the sentence by the trial court is substituted with a sentence of the term of imprisonment so far served. The offender to be released from custody forthwith unless otherwise lawfully held.
12. Consequently, this file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 15th day of April 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E127 OF 2025
(Coram: Andayi W. F., J.)
MORRIS MAYA………………………..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court during the High Court Leaders’ Conference on 14/4/2025 for review of sentence. The review of sentence is 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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted and sentenced to serve two years imprisonment 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 5/4/2024 at Tudor area in Mvita Sub-County within Mombasa County, stole a lap top valued at KShs 37,000/=, assorted clothes valued at KShs 5,000/= and cash KShs 35,000/= all valued at KSs 77,000/= the property of Stanley Mwadime.
4. The facts of the case were that the complainant took in the offender from the streets and offered him accommodation at his residence. However, the offender turned against the complainant and stole from him.
5. The trial court called for a pre-sentence report but the same was not made available at the time of sentencing. The learned prosecution counsel indicated that the accused person was a first offender. However, the trial court did not take the mitigation by the offender as provided for under section 216 of the Criminal Procedure Code that:
“S. 316. The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.”
6. Although not mandatory, the same is a useful guide for the court in assessing an appropriate sentence for an offender.
7. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender is aged 23 years. He has served 11 months imprisonment and remains to serve 5 months.
8. The offender’s family, specifically his mother, is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence and commits to be law abiding. There are no immediate concerns in the community to his reintegration. The report recommends that he be placed on community service at Tudor Chief’s office under the supervision of the area chief.
9. The learned trial magistrate did not offer any reason why he preferred a prison sentence to a non-custodial sentence given the age of the offender, the low value of the items stolen. The learned trial magistrate would be guided by the Sentencing Police Guidelines which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
10. The circumstances of the offence did not warrant a prison term especially considering the issue of congestion in Kenya’s prison system. I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
11. Accordingly, the offender’s sentence is reviewed. I am satisfied that the period served in prison is sufficient for the offender’s punishment and rehabilitation. Consequently, the sentence by the trial court is substituted with a sentence of the term of imprisonment so far served. The offender to be released from custody forthwith unless otherwise lawfully held.
12. Consequently, this file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 15th day of April 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE