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JudgmentNYAWA KWAKWA MWALENGA VS The Republic6 min read

NYAWA KWAKWA MWALENGA VS The Republic

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

  1. This matter is placed before me for review of sentence under Article 50(2)(q) as well as 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. I have considered the sentence review report filed in this court on 16/10/2024 by the Probation and Aftercare Service Department as per this court’s directions dated 19/9/2024 requesting for the same.
  3. The applicant was charged before the Magistrate’s Court at Mombasa on 23/7/2023 for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code that on 21/7/2023 at Maweni area in Likoni Sub-County within Mombasa County unlawfully assaulted Racheal Daniel Beja thereby occasioning her actual bodily harm. The applicant pleaded guilty to the charge and was convicted and sentenced to five years imprisonment, the maximum penalty for the offence.
  4. 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.”

  1. 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.

  1. I have perused the trial court file proceedings forwarded to this court.
  2. According to the facts recorded by the trial court at plea taking, the violence meted out by the applicant upon the complainant who was his wife was brutal. In the middle of the night and demanding that the complainant tells him whether she had committed incest with her father, and this out of some alleged ability by the applicant to get revelations in his dreams about issues, the applicant first held a knife to the complainant demanding an answer from her. He left the knife, tied the victim up and lit a plastic rod and held its dripping end upon the complainant’s body as it burnt her. He went further and picked a whip and lashed the complainant. Neighbours intervened and called the police who responded and rescued the complainant and arrested the applicant.
  3. The trial court called for a pre-sentence report that turned out to be not favourable to the applicant. The report confirms the circumstances leading to him committing the offence alleging that he comes from a family of prophets/foreseers. The actions by the applicant had left the victim with indelible marks on the body.
  4. The applicant attributed his actions to anger when he does not get a satisfactory answer to things he has dreamt about. At that time, he exhibited no remorse for his actions.
  5. The victim indicated that she was angered at the fact that the offender mistreated her in an inhumane way and his opinions in justifying the same were ill-fated. She feared for her life and felt that if released the applicant might retaliate.
  6. The community reported that this was not the first time the applicant had assaulted the complainant save that the earlier incidents had been solved at community level. They found him an opinionated person who is hard to convince otherwise.
  7. The sentence review report filed herein by Stephen Muthoka indicates that the applicant has changed and has learnt to be law abiding. He is living responsibly with other inmates and is focused on self-management while learning how to control his anger. He is remorseful and asks for mercy from the court and forgiveness from the victim.
  8. The applicant’s wife and sister back home are ready to receive him back. The applicant is agreeable to perform community service or serve on probation as would be found appropriate. The report recommends that he be released on probation for 12 months.
  9. The 1st applicant Nyawa Kwakwa Mwalenga is now aged 23 years old.  He has been in custody for 14 months. He has barely served half of his term of imprisonment. As early as April this year, the applicant had applied for sentence review to this court. The same was declined by this court on 15/4/2024.
  10. Section 3 of the Community Service Orders Act provides that:

“Where any person is convicted of an offence punishable with—

  1. imprisonment for a term not exceeding three years, with or without the option of a fine; or
  2. 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.

  1. Clearly, the applicant’s case did not call for consideration under this section of the law.
  2. Considering the circumstances of the offence and the pre-sentence report, I find that indeed this was not a case deserving of a non-custodial sentence. In fact, the applicant should count himself lucky that he was not charged with a more serious offence of grievous harm that would have attracted a more severe penalty which under the circumstances he deserved. Expressing remorse at this time just because he is in custody and wants his freedom does not serve to make him a person of good character. One of the objectives punishments is to reform the offender. The sentence review report does not show how the applicant has reformed for the time he has been in custody. But punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system. Here is a man who set up his own allegations against a victim and went on to systematically assault her in a way equivalent to torture as the victim expressed in the pre-sentence report. Yet this was a person she trusted as a partner in life.
  3. It will be a wrong message to send to the community that such a person can easily walk out of his punishment without any tangible evidence of what he has undergone to reform him by mere indication that he is remorseful. Society should appreciate that gender-based violence is frowned upon and should be completely discouraged.  The aggravating circumstances of this case, where he continuously inflicted pain on the victim in a heinous manner requires that he be held in custody for him to reflect upon his opinionated stances and the harm they can do to himself and others.
  4. One issue that I note from the sentence review report and the report from prison officers is that none of them has indicated what programme of rehabilitation and anger management the applicant has been taken through in prison in order for him to be indicated as having reformed. The only activity he is praised for engaging while in prison is cleaning.  I find that the custodial sentence was commensurate to the facts of the case and is not for review.
  5. Consequently, I find that this is not a case suitable for review of sentence. The applicant shall serve his sentence to completion as passed by the trial court.
  6. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024 and transmitted to prison authorities through electronic means to be given effect immediately.

    NYAWA KWAKWA MWALENGA VS The Republic NYAWA KWAKWA MWALENGA VS The Republic