REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E110 OF 2025
(Coram: Andayi W. F., J.)
RASHID SALIM TEMBE alias RASHUU…………………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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted and sentenced to serve 36 months imprisonment for the offence of preparation to commit a felony contrary to section 308(3)(c) of the Penal Code (Cap. 63) Laws of Kenya that on 14/8/2024 at around 0430 Hours at Mtaa wa Makka area in Likoni Sub-County within Mombasa County, jointly with others not before court was found in a corridor between rental houses at night armed with offensive weapons namely panga, knife and spokes with intent to commit a felony therein to wit theft, having taken precautions to conceal his presence.
4. A pre-sentence report called for by the trial court recommended for a non-custodial sentence of one-year probation. The report indicated that the offender was living peacefully in the community and had no reported cases of conflict with the law. Further that the offending behavior was influenced by his negative peer associations, inadequate self-assertiveness and decision-making skills. He expressed remorse and prayed for the court’s lenience.
5. Upon considering the report, the learned trial magistrate remarked that although the same was positive, the court was cognizant of panga wielding gangs and that the circumstances under which the offence was committed demonstrated that the accused person and his gang were the people terrorizing the public. For those reasons, the learned magistrate found that a non-custodial sentence was not suitable and imposed the sentence of 36 months’ imprisonment.
6. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender has served five (5) months imprisonment and remains to serve 1 year and 5 months.
7. The offender has a wife with three children who attend a local primary school. The wife is not gainfully employed.
8. 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. The report recommends that he be placed on community service at Likoni Chief’s office under the supervision of the area chief.
9. The learned trial magistrate seems to have taken into account extraneous factors in passing her sentence. The circumstances of the offence did not point to a gang suspected of terrorizing residents as commended by the learned trial magistrate. From the pre-sentence report filed before the trial court and the sentence review report filed herein, I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
10. Accordingly, the offender’s sentence is reviewed. The sentence by the trial court is substituted. The offender is placed on community service for the remainder of his term. He will serve 8 months community service at Likoni Chief’s office under the supervision of the area chief.
11. 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.
12. Consequently, this file is closed.
13. 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. E110 OF 2025
(Coram: Andayi W. F., J.)
RASHID SALIM TEMBE alias RASHUU…………………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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted and sentenced to serve 36 months imprisonment for the offence of preparation to commit a felony contrary to section 308(3)(c) of the Penal Code (Cap. 63) Laws of Kenya that on 14/8/2024 at around 0430 Hours at Mtaa wa Makka area in Likoni Sub-County within Mombasa County, jointly with others not before court was found in a corridor between rental houses at night armed with offensive weapons namely panga, knife and spokes with intent to commit a felony therein to wit theft, having taken precautions to conceal his presence.
4. A pre-sentence report called for by the trial court recommended for a non-custodial sentence of one-year probation. The report indicated that the offender was living peacefully in the community and had no reported cases of conflict with the law. Further that the offending behavior was influenced by his negative peer associations, inadequate self-assertiveness and decision-making skills. He expressed remorse and prayed for the court’s lenience.
5. Upon considering the report, the learned trial magistrate remarked that although the same was positive, the court was cognizant of panga wielding gangs and that the circumstances under which the offence was committed demonstrated that the accused person and his gang were the people terrorizing the public. For those reasons, the learned magistrate found that a non-custodial sentence was not suitable and imposed the sentence of 36 months’ imprisonment.
6. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender has served five (5) months imprisonment and remains to serve 1 year and 5 months.
7. The offender has a wife with three children who attend a local primary school. The wife is not gainfully employed.
8. 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. The report recommends that he be placed on community service at Likoni Chief’s office under the supervision of the area chief.
9. The learned trial magistrate seems to have taken into account extraneous factors in passing her sentence. The circumstances of the offence did not point to a gang suspected of terrorizing residents as commended by the learned trial magistrate. From the pre-sentence report filed before the trial court and the sentence review report filed herein, I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
10. Accordingly, the offender’s sentence is reviewed. The sentence by the trial court is substituted. The offender is placed on community service for the remainder of his term. He will serve 8 months community service at Likoni Chief’s office under the supervision of the area chief.
11. 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.
12. Consequently, this file is closed.
13. 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