9/10/2024
Before Andayi W. F., J.
In Chambers.
Court: I have received the sentence review report filed herein by the Probation and Aftercare Service Department undated as per this court’s directions dated 19/9/2024 requesting for the same.
Ruling on 31/10/2024.
HON. ANDAYI W. F.
JUDGE
RULING
- This matter is paced before me for revision of sentence under Article 165(6) and (7) as well as Article 50(2)(q) 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.
- I have received and considered the sentence review report filed herein by the Probation and Aftercare Service Department undated as per this court’s directions dated 19/9/2024 requesting for the same.
- I have also received the trial court file and perused the proceedings therein.
- The two applicants were charged before the Magistrate’s Court at Mombasa on 24/11/2023 for the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code that on 21/11/2023 at Corner Polisi area in Likoni Sub-County within Mombasa County with another not before court stole one motor cycle registration No. KMGG 782 Boxer valued at KShs 159,000/= the property of Morris Lugwe. The applicants pleaded guilty to the charge and were convicted and sentenced to first each to compensate the complainant KShs 60,000/= in default to serve 12 months imprisonment and in addition each to pay a fine of KShs 20,000/= in default to serve 6 months imprisonment. The sentences were directed to run consecutively meaning that in default of payment of the compensation or fine, then they would serve 18 months imprisonment.
- This matter comes up for review of sentence as provided for under Article 50(2) of the Constitution which provides that: -
“Every accused person has the right to a fair trial, which includes the right - (q) if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
- Articles 165(6) and (7) of the Constitution on the other hand gives the High Court supervisory jurisdiction over subordinate courts 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.
- Fair administration of justice requires that a sentence be commensurate to the facts of the case. I note from the trial court’s record that the trial court did not call for a pre-sentence report in order to assist it to evaluate the appropriate and proportionate sentence to the facts of the offence committed.
- According to the facts read in court at plea, the stolen item, a motor cycle was valued at KShs 159,000/=. It does not seem to have been recovered. The facts also state that the two applicants were operating the motor cycle on behalf of the complainant when it disappeared while in their hands.
- The 1st applicant Mwero Mzungu is now aged 42 years and the second applicant Jawa Nyundo is 30 years old. They have served about 11 months in prison meaning that they have completed the default sentence for the fine and started the one for default in paying compensation.
- The sentence review reports filed herein by the probation officer Simon Mwero recommend that the applicants may be released to complete their sentences on a non-custodial sentence of community service at Shelly Beach police station.
- The reports further indicate that the applicants are remorseful and willing to perform community service. Their respective families indicated that they will assist in his reintegration and supervision
- Section 3 of the Community Service Orders Act provides that:
“Where any person is convicted of an offence punishable with—
- imprisonment for a term not exceeding three years, with or without the option of a fine; or
- imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate,
the court may, subject to this Act, make a community service order requiring the offender to perform community service.
- Considering all these factors I find that the custodial term the applicants have served is sufficient to serve as a warning to him that breaking the law attracts dire consequences however minor the infraction may be. I find that the custodial sentence has served its purpose.
- 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 convicts default sentences are reviewed to a term of imprisonment so far served and in lieu of the remainder of the term of imprisonment they will serve four (4) months community service at Shelly Beach and Likoni police stations respectively under the supervision of the respective OCSs under the Mombasa Probation and Aftercare department to whom they will be reporting once after two weeks, upon their release from custody.
- They are otherwise ordered released from custody forthwith unless otherwise lawfully held
- Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities to be given effect immediately.
ANDAYI W. F.
JUDGE