REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E135 OF 2025
(Coram: Andayi W. F., J.)
MWINYIHAJI MOHAMED……………..…………….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 trial court file has been placed before me and I have perused the same.
3. The offender was convicted and sentenced a composite charge of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. The household items stolen were worth KShs 142,250/= the property of Bejuma Swalehe. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that otherwise in the course of stealing he dishonestly retained one laptop make HP, one Total gas cylinder, Itel mobile phone, Quicktel mobile phone, 2 pairs of kanzu, 4 pairs of bui bui, 17 pieces of bedsheets, 5 pairs of ladies shoes, 2 pairs of lesso, 4 pairs of T-shirts, one pair of prayer cloth, three sufurias, one big pack, one solar lamp and assorted plumping pipes knowing or having reasons to believe it to be stolen property.
4. He was sentenced to 18 months years imprisonment on first limb of housebreaking on the principal charge of house breaking and stealing. The learned magistrate did not sentence the offender on the second limb of stealing.
5. The offence of housebreaking which forms the first limb of the charge is provided for under section 304 of the Penal Code as follows:
(1) Any person who—
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
6. The offence of stealing in a dwelling house which forms the second limb of the first charge is provided for under section 279(b) of the Penal Code that if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house the offender is liable to imprisonment for fourteen years.
7. The learned trial magistrate was also in error for failing to sentence on both limbs of the principal charge of house breaking and stealing from a dwelling house.
8. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. In mitigation the offender asked for lenience pleading that he is a family man.
9. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
10. The sentence review report dated 11/4/2025 filed herein indicates that the offender is now suitable for a non-custodial sentence. It indicates that he separated with his wife and his two children are staying with his mother following his incarceration. He prays for a non-custodial sentence. The report indicates that there are no current issues in the community that can challenge his reintegration and resettlement. This is in contrast to the pre-sentence report which indicated that the community had a very negative attitude towards him and were not receptive of his going back to them. He was portrayed as a habitual offender with many cases of being in conflict with the law. He was almost lynched by angry members of the public during this last incident and was only saved by the quick response of law enforcement agencies. That his family members were not responsive and did not show any positive attitude to be engaged in his rehabilitation and reintegration. Even his mother was said to be not co-operative during the inquiry.
11. The sentence review report now recommends community service at Shika-adabu Chief’s officer under the supervision of the area chief.
12. Given the very negative pre-sentence report that was very detailed unlike the sentence review report that is very brief, I am not satisfied that this is a suitable case for a review of sentence. Sentence review is not for cosmetic purposes of releasing unsuitable persons who otherwise are deserving of punishment for their offences to the community.
13. Given the detailed negative report against the offender, I have not seen any meaningful report from prison on his rehabilitation.
14. Given the seriousness of the offences against the offender and the severe penalties attendant thereto I find that the sentence of imprisonment imposed by the trial court was commensurate to the offences charged.
15. Consequently, the sentence imposed by the trail court is corrected to provide for a sentence of 18 months’ imprisonment on the first limb of house breaking contrary to section 304(1) PC and 6 months imprisonment on the second limb of stealing in a dwelling house contrary to section 279(b) PC. The second sentence shall run concurrent to the first one meaning that the total term remains 18 months imprisonment.
16. The review is unsuccessful and the offender shall therefore complete his remaining term of imprisonment as earlier passed.
17. Consequently, this file is closed.
18. 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. E135 OF 2025
(Coram: Andayi W. F., J.)
MWINYIHAJI MOHAMED……………..…………….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 trial court file has been placed before me and I have perused the same.
3. The offender was convicted and sentenced a composite charge of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. The household items stolen were worth KShs 142,250/= the property of Bejuma Swalehe. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that otherwise in the course of stealing he dishonestly retained one laptop make HP, one Total gas cylinder, Itel mobile phone, Quicktel mobile phone, 2 pairs of kanzu, 4 pairs of bui bui, 17 pieces of bedsheets, 5 pairs of ladies shoes, 2 pairs of lesso, 4 pairs of T-shirts, one pair of prayer cloth, three sufurias, one big pack, one solar lamp and assorted plumping pipes knowing or having reasons to believe it to be stolen property.
4. He was sentenced to 18 months years imprisonment on first limb of housebreaking on the principal charge of house breaking and stealing. The learned magistrate did not sentence the offender on the second limb of stealing.
5. The offence of housebreaking which forms the first limb of the charge is provided for under section 304 of the Penal Code as follows:
(1) Any person who—
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
6. The offence of stealing in a dwelling house which forms the second limb of the first charge is provided for under section 279(b) of the Penal Code that if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house the offender is liable to imprisonment for fourteen years.
7. The learned trial magistrate was also in error for failing to sentence on both limbs of the principal charge of house breaking and stealing from a dwelling house.
8. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. In mitigation the offender asked for lenience pleading that he is a family man.
9. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
10. The sentence review report dated 11/4/2025 filed herein indicates that the offender is now suitable for a non-custodial sentence. It indicates that he separated with his wife and his two children are staying with his mother following his incarceration. He prays for a non-custodial sentence. The report indicates that there are no current issues in the community that can challenge his reintegration and resettlement. This is in contrast to the pre-sentence report which indicated that the community had a very negative attitude towards him and were not receptive of his going back to them. He was portrayed as a habitual offender with many cases of being in conflict with the law. He was almost lynched by angry members of the public during this last incident and was only saved by the quick response of law enforcement agencies. That his family members were not responsive and did not show any positive attitude to be engaged in his rehabilitation and reintegration. Even his mother was said to be not co-operative during the inquiry.
11. The sentence review report now recommends community service at Shika-adabu Chief’s officer under the supervision of the area chief.
12. Given the very negative pre-sentence report that was very detailed unlike the sentence review report that is very brief, I am not satisfied that this is a suitable case for a review of sentence. Sentence review is not for cosmetic purposes of releasing unsuitable persons who otherwise are deserving of punishment for their offences to the community.
13. Given the detailed negative report against the offender, I have not seen any meaningful report from prison on his rehabilitation.
14. Given the seriousness of the offences against the offender and the severe penalties attendant thereto I find that the sentence of imprisonment imposed by the trial court was commensurate to the offences charged.
15. Consequently, the sentence imposed by the trail court is corrected to provide for a sentence of 18 months’ imprisonment on the first limb of house breaking contrary to section 304(1) PC and 6 months imprisonment on the second limb of stealing in a dwelling house contrary to section 279(b) PC. The second sentence shall run concurrent to the first one meaning that the total term remains 18 months imprisonment.
16. The review is unsuccessful and the offender shall therefore complete his remaining term of imprisonment as earlier passed.
17. Consequently, this file is closed.
18. 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