NICKSON WAMBUA VS The Republic NICKSON WAMBUA VS The Republic

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 offender Nickson Wambua was convicted and sentenced by the Magistrate’s Court at Mombasa on 22/2/2024 on the charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that he stole a radio make Sony valued at KShs 7,000/= Samuel Kamau Kiarie. The item was later recovered from the person he had sold.
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve two years imprisonment.
4. 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. The facts recorded by the trial court at plea taking were that, the offender shop-lifted a muffin from the supermarket and he was apprehended as he left.
8. In mitigation, the offender asked for lenience stating that the offender had offered to forgive him. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence.
9. The sentence review report filed in this court by Miss Jeria Oara Probation Officer on 9/10/2024 following this court’s directions on decongestion indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service at Makupa police station.
10. 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.
11. In this case, the value of the property stolen is small. The property was recovered and restored to the complainant and so he did not suffer loss but inconvenience.
12. 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. Given his young age, I find that the period served is sufficient for that purpose.
13. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Makupa police station for a period of six months. He is accordingly released to the Mombasa Probation and Aftercare department to start his non-custodial sentence.
14. Orders accordingly.
Ruling, Dated and Delivered at Mombasa this 15th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.