Skip to content
JudgmentRAJAB IBRAHIM VS The Republic4 min read

RAJAB IBRAHIM VS The Republic

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

  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 applicant was convicted and sentenced by the Magistrate’s Court at Mombasa on 25/6/2024 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 15/4/2024 at Bomu area in Changamwe Sub-County within Mombasa County stole wooden benches valued at KShs 24,000/= the property of Bomu primary school.
  3. The applicant pleaded guilty to the charge and was convicted and sentenced to serve 36 months 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.”

  1. 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.”

  1. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
  2. The facts recorded by the trial court at plea taking were that, the offender went to Bomu primary school and stole two wooden benches. They were found with one Hassan Juma who informed the school caretaker that the benches belonged to the offender. The offender was subsequently arrested and charged.
  3. Before sentencing, the prosecution informed the court that the offender had no previous records of conviction. In mitigation, the offender asked for pardon and pleaded for lenience. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
  4. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the applicant for a non-custodial sentence. The applicant was cast as a high-risk offender as he was a habitual thief within the community with several pending cases within Chaani and Changamwe police stations. The police at the two stations acknowledged that they are now familiar with him.
  5. The report further indicated that at the time of interview, the offender prayed for forgiveness and lenience.
  6. The victim’s views were that the offender is a habitual thief who belongs to a gang that has been terrorizing them and the members uttered threats to them when he was arrested and so they felt insecure. The community expressed similar sentiments about the offender and called for justice to be meted out to him. Otherwise, they threatened to lynch him should he be found committing another offence since he keeps being released upon arrest.
  7. The report further indicated that the offender had absconded a previous community service order.
  8. The sentence review report filed in this court by Nafisa Abdallah, Probation Officer on 9/10/2024 indicates that the offender is not suitable for a non-custodial sentence largely for the same reasons as before, the victims and the community indicating that the period served so far is too short for any meaningful rehabilitation to have occurred.
  9. The offender is aged 26 years. He has been in custody for about four months. He has a record of absconding a non-custodial sentence before and his family and the community are not receptive of his being released early to serve a non-custodial sentence.
  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. However, it involves theft of school property meaning that it affects a larger section of the community. The offender has a poor record within his community, with the police and with the court having absconded a previous community service order. He has not yer earned trust of these institutions that he can serve another non-custodial sentence. Indeed, the period served in custody is too short for any meaningful reformation to have taken place. I do not find any information provided by the prison authorities on what he has been engaged in or how he has been assisted towards his reform.
  12. Punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system. 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.
  13. I find that this is a case not deserving of a sentence review to a non-custodial sentence. The offender requires to complete his term of imprisonment for his own safety and well-being, and for him to reflect fully on his conduct and relations with the community and to appreciate that breaking the law can attract dire consequences however minor the offence may be. 
  14. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities electronically to be given effect immediately.

    RAJAB IBRAHIM VS The Republic RAJAB IBRAHIM VS The Republic