REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E123 OF 2025
(Coram: Andayi W. F., J.)
RASHID RAMADHAN ABDIRAHMAN.…………….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 for the offence of burglary contrary to section 304(1)(b) of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that between the night of 11th and 12th October 2024 at an unknown time at Zamaria area within Likoni Sub-County within Mombasa County broke and entered a dwelling house of Farouk Mzamir with intent to stela therein and did steal one sub-woofer of make Avon valued at Kshs 29,995/= 13 Kg gas cylinder valued at KShs 10,000/= a grinder valued at KShs 8,000/=, fruits blender valued at KShs 3,000/=, electric iron box valued at KShs 2,500/=, 3 pairs of sports shoes estimated worth KShs 9,000/=, assorted farm implements valued at KShs 10,000/=, assorted beddings valued at KShs 10,000/=, 16 GB USB and assorted school uniforms. All the items stolen were worth KShs 100,000/= the property of Farouk Hassan Mzamir.
4. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that on 10/11/2024 at Bomani area in Likoni Sub-County within Mombasa County, otherwise than in the course of stealing he dishonestly retained one sub-woofer make Avon, one electric iron box, 2 pairs of sports shoes, 10 pieces of school uniform, two bed sheets, 16 GB USB and two head scarfs, knowing or having reasons to believe them to be stolen goods.
5. He was sentenced to pay a fine of KShs 100,000/= in default to serve 1-year imprisonment on the principal charge of burglary.
6. The offence of burglary 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.
7. Before sentence the court did not ask the prosecution to provide any information on the offenders past record of convictions, if any as provided for under section 216 of the Criminal Procedure Code that:
“S. 316. The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.”
8. Although not mandatory, the same is a useful guide for the court in assessing an appropriate sentence for an offender.
9. The trial court however called for a pre-sentence report which was favourable for a non-custodial sentence and recommended community service at Mtongwe chief’s office. However, the learned trial magistrate remarked that the offender being a young man, quite energetic, he had absolutely no reason to engage in an offence of this nature.
10. The sentence review report dated 11/4/2025 indicates that he is still suitable for a non-custodial sentence. The offender is agreeable to the said sentence. He is remorseful and regrets his actions. He is indicated to be 20 years old and in the pre-sentence report it was indicated that he had stolen from his employer for whom he had worked for a long time. He has served six months and remains with 4 months to serve. The report recommends that he serves the remainder of his term on community service at Mtongwe chief’s office.
11. His family is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence and commits to be law abiding. There are no immediate concerns in the community to his reintegration.
12. Given the young age of the offender, the fact that he is still in prison means that he is unable to raise the fine raised which under the circumstances seems to have been excessive given the fact that a good number of the items were recovered. Together with the positive reports from the Probation and Aftercare Service department recommending a non-custodial sentence, I am satisfied that the offender is suitable for a review of sentence. Accordingly, the offender’s sentence is reviewed. The offender is placed on community service for the remainder of his term. He will serve 3 months community service at Mtongwe Chief’s office under the supervision of the area chief.
13. He accordingly released to Mombasa Probation and Aftercare Service office to be guided on how to undertake his remainder of the sentence of community service.
14. Consequently, this file is closed.
15. 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. E123 OF 2025
(Coram: Andayi W. F., J.)
RASHID RAMADHAN ABDIRAHMAN.…………….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 for the offence of burglary contrary to section 304(1)(b) of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that between the night of 11th and 12th October 2024 at an unknown time at Zamaria area within Likoni Sub-County within Mombasa County broke and entered a dwelling house of Farouk Mzamir with intent to stela therein and did steal one sub-woofer of make Avon valued at Kshs 29,995/= 13 Kg gas cylinder valued at KShs 10,000/= a grinder valued at KShs 8,000/=, fruits blender valued at KShs 3,000/=, electric iron box valued at KShs 2,500/=, 3 pairs of sports shoes estimated worth KShs 9,000/=, assorted farm implements valued at KShs 10,000/=, assorted beddings valued at KShs 10,000/=, 16 GB USB and assorted school uniforms. All the items stolen were worth KShs 100,000/= the property of Farouk Hassan Mzamir.
4. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that on 10/11/2024 at Bomani area in Likoni Sub-County within Mombasa County, otherwise than in the course of stealing he dishonestly retained one sub-woofer make Avon, one electric iron box, 2 pairs of sports shoes, 10 pieces of school uniform, two bed sheets, 16 GB USB and two head scarfs, knowing or having reasons to believe them to be stolen goods.
5. He was sentenced to pay a fine of KShs 100,000/= in default to serve 1-year imprisonment on the principal charge of burglary.
6. The offence of burglary 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.
7. Before sentence the court did not ask the prosecution to provide any information on the offenders past record of convictions, if any as provided for under section 216 of the Criminal Procedure Code that:
“S. 316. The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.”
8. Although not mandatory, the same is a useful guide for the court in assessing an appropriate sentence for an offender.
9. The trial court however called for a pre-sentence report which was favourable for a non-custodial sentence and recommended community service at Mtongwe chief’s office. However, the learned trial magistrate remarked that the offender being a young man, quite energetic, he had absolutely no reason to engage in an offence of this nature.
10. The sentence review report dated 11/4/2025 indicates that he is still suitable for a non-custodial sentence. The offender is agreeable to the said sentence. He is remorseful and regrets his actions. He is indicated to be 20 years old and in the pre-sentence report it was indicated that he had stolen from his employer for whom he had worked for a long time. He has served six months and remains with 4 months to serve. The report recommends that he serves the remainder of his term on community service at Mtongwe chief’s office.
11. His family is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence and commits to be law abiding. There are no immediate concerns in the community to his reintegration.
12. Given the young age of the offender, the fact that he is still in prison means that he is unable to raise the fine raised which under the circumstances seems to have been excessive given the fact that a good number of the items were recovered. Together with the positive reports from the Probation and Aftercare Service department recommending a non-custodial sentence, I am satisfied that the offender is suitable for a review of sentence. Accordingly, the offender’s sentence is reviewed. The offender is placed on community service for the remainder of his term. He will serve 3 months community service at Mtongwe Chief’s office under the supervision of the area chief.
13. He accordingly released to Mombasa Probation and Aftercare Service office to be guided on how to undertake his remainder of the sentence of community service.
14. Consequently, this file is closed.
15. 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