REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E083 OF 2025
(Coram: Andayi W. F., J.)
SADIKI IBRAHIM JUMA………………………………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 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 me and I have perused the same.
3. The offender was convicted and sentenced on two counts. The first was preparation to commit a felony contrary to section 308(2) and (4) of the Penal Code (Cap. 63) Laws of Kenya that on 26/1/2024 at around 0200 Hours at berth 7 in Kilindini Port, within Mombasa County, not being at his place of abode had with him an article for use in the course of theft namely hacksaw and a knife.
4. The second count was trespass upon a restricted area contrary to section 3(1) as read with section 11 of the Trespass Act (cap. 294) Laws of Kenya 26/1/2024 at around 0200 Hours at berth 7 in Kilindini Port, within Mombasa County, he unlawfully entered a restricted area namely Kilindini Port without the consent of the managing director of the Kenya Ports Authority.
5. He was sentenced to 18 months’ imprisonment on the first count of preparation to commit a felony and a fine of KShs 20,000/- in default to serve one-year imprisonment on the second count of trespass. The sentence in default of fine for the second count was directed to run consecutive to the sentence of imprisonment on the first count.
6. The record shows that this matter came up for review of sentence and in a ruling dated 6/2/2025, this court Hon. Lady Justice Wendy Micheni inadvertently only considered a review of the sentence for the first count of preparation to commit a felony and substituted the same with a non-custodial sentence of community service to be served at Portreitz Location office for the remainder of the sentence.
7. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender has served one year and two months imprisonment and remains with 6 months imprisonment to serve.
8. I note that for the offence of trespass contrary to section 3(1) as read with section 11 of the Trespass Act, the learned trial magistrate imposed a sentence that was beyond what is prescribed by the law and therefore committed an error of law. The said section provide as follows:
“S. 3(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.
(2) Where any person is charged with an offence under subsection (1) of this section the burden of proving that he had reasonable excuse or the consent of the occupier shall lie upon him.”
…
“S. 11. Any person guilty of an offence under this Act for which no penalty is expressly provided shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding two months or to both such fine and imprisonment.”
9. I also note that the sentence in default of imprisonment imposed by the learned trial magistrate, if it were correct, would not be in accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya which provides as follows:
2. In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
3. The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
10. From the foregoing provision, it is apparent that for the second count the learned trial magistrate imposed a default sentence beyond what is prescribed by the law. Since the fine was KShs 20,000/= the maximum default term is 6 months imprisonment which the learned trial magistrate would have imposed if he was correct in his sentence. He would be in error to impose a higher term of imprisonment as he did.
11. In this case, the sentence for the offender on the second count of trespass imposed was in error and the same is set aside and substituted with a fine of KShs 500/= in default to serve 14 days imprisonment. The default term was however correctly directed to run consecutive to the term of imprisonment for the first count. I am satisfied that this term of 14 days imprisonment has since been served given this court’s earlier ruling of 6/2/2025 was that he be released from custody at the time to serve community service.
12. Before sentence the prosecution informed the court that the offender had several relevant previous records of conviction and the same were produced before the court and confirmed.
13. The sentence review report dated 11/4/2025 filed herein in respect of the offender indicates that he is suitable for a non-custodial sentence. His family is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence. There are no immediate concerns in the community to his reintegration. The report recommends that he be placed on community service at Mtwapa Chief’s office under the supervision of the area chief.
14. Accordingly, the offender’s sentence in respect of count 1, which is the remaining sentence, shall be in line with the ruling of this court dated 6/2/2025 that he be placed on community service for the remainder of his term which is now reviewed to 4 months imprisonment. He shall now be placed at Mtwapa Chief’s office under the supervision of the area chief.
15. 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.
16. Consequently, this file is closed.
17. 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. E083 OF 2025
(Coram: Andayi W. F., J.)
SADIKI IBRAHIM JUMA………………………………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 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 me and I have perused the same.
3. The offender was convicted and sentenced on two counts. The first was preparation to commit a felony contrary to section 308(2) and (4) of the Penal Code (Cap. 63) Laws of Kenya that on 26/1/2024 at around 0200 Hours at berth 7 in Kilindini Port, within Mombasa County, not being at his place of abode had with him an article for use in the course of theft namely hacksaw and a knife.
4. The second count was trespass upon a restricted area contrary to section 3(1) as read with section 11 of the Trespass Act (cap. 294) Laws of Kenya 26/1/2024 at around 0200 Hours at berth 7 in Kilindini Port, within Mombasa County, he unlawfully entered a restricted area namely Kilindini Port without the consent of the managing director of the Kenya Ports Authority.
5. He was sentenced to 18 months’ imprisonment on the first count of preparation to commit a felony and a fine of KShs 20,000/- in default to serve one-year imprisonment on the second count of trespass. The sentence in default of fine for the second count was directed to run consecutive to the sentence of imprisonment on the first count.
6. The record shows that this matter came up for review of sentence and in a ruling dated 6/2/2025, this court Hon. Lady Justice Wendy Micheni inadvertently only considered a review of the sentence for the first count of preparation to commit a felony and substituted the same with a non-custodial sentence of community service to be served at Portreitz Location office for the remainder of the sentence.
7. A sentence review report dated 11/4/2025 has been placed before this court and it indicates that the offender has served one year and two months imprisonment and remains with 6 months imprisonment to serve.
8. I note that for the offence of trespass contrary to section 3(1) as read with section 11 of the Trespass Act, the learned trial magistrate imposed a sentence that was beyond what is prescribed by the law and therefore committed an error of law. The said section provide as follows:
“S. 3(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.
(2) Where any person is charged with an offence under subsection (1) of this section the burden of proving that he had reasonable excuse or the consent of the occupier shall lie upon him.”
…
“S. 11. Any person guilty of an offence under this Act for which no penalty is expressly provided shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding two months or to both such fine and imprisonment.”
9. I also note that the sentence in default of imprisonment imposed by the learned trial magistrate, if it were correct, would not be in accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya which provides as follows:
2. In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
3. The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
10. From the foregoing provision, it is apparent that for the second count the learned trial magistrate imposed a default sentence beyond what is prescribed by the law. Since the fine was KShs 20,000/= the maximum default term is 6 months imprisonment which the learned trial magistrate would have imposed if he was correct in his sentence. He would be in error to impose a higher term of imprisonment as he did.
11. In this case, the sentence for the offender on the second count of trespass imposed was in error and the same is set aside and substituted with a fine of KShs 500/= in default to serve 14 days imprisonment. The default term was however correctly directed to run consecutive to the term of imprisonment for the first count. I am satisfied that this term of 14 days imprisonment has since been served given this court’s earlier ruling of 6/2/2025 was that he be released from custody at the time to serve community service.
12. Before sentence the prosecution informed the court that the offender had several relevant previous records of conviction and the same were produced before the court and confirmed.
13. The sentence review report dated 11/4/2025 filed herein in respect of the offender indicates that he is suitable for a non-custodial sentence. His family is ready to have him back and assist them in rehabilitation and resettlement. He is open to a non-custodial sentence. There are no immediate concerns in the community to his reintegration. The report recommends that he be placed on community service at Mtwapa Chief’s office under the supervision of the area chief.
14. Accordingly, the offender’s sentence in respect of count 1, which is the remaining sentence, shall be in line with the ruling of this court dated 6/2/2025 that he be placed on community service for the remainder of his term which is now reviewed to 4 months imprisonment. He shall now be placed at Mtwapa Chief’s office under the supervision of the area chief.
15. 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.
16. Consequently, this file is closed.
17. 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