(Revision of sentence in S0/044/2022 at the Chief Magistrates Court Mombasa delivered on 29 th May, 2025 by Hon. A.K Ithuku (CM))
1. This Ruling emanates from a home-made Notice of Motion by Applicant, Salim Ali Said, wherein he seeks a review of his sentence. The Applicant was charged, convicted and sentenced to serve 5 years’ imprisonment for the offence defilement contrary to section 8 (1) as read with 8 (4) of the Sexual Offences Act. He was however discharged on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act.
2. The particulars of the offense are that on diverse dates between 1 st December ,2021 and 10 th March,2022 the Accused unlawfully and intentionally caused penetration with a child.
3. The Applicant has moved this court beseeching it to exercise its supervisory power of Revision and proceed to set aside the reminder of his sentence and substitute it with a non-custodial sentence.
4. I have considered the application, noting that the same is not opposed by the Respondent, who failed to submit on the same, as at the time of making this determination.
5. The jurisdiction of the High Court in respect to the powers of revision is supervisory and is provided under the Constitution in Articles 165 (6) and (7) and Article 50 (2)(q) of the COK in the following terms respectively:
“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.”
"(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law."
6. Equally, this court's revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code :
"362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court."
7. From the Court’s record the is no reply by the Respondent, Progressive Report by the Prison Administration and Sentencing Review Report by the Probation Officer. On this note, this Court shall proceed to rely on the Victim Impact Assessment dated 29 th , May 2025.
8. Section 4 of the Probation of Offenders Act states that:
"4. Power of court to permit conditional release of offenders
(1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may-
(a) convict the offender and make a probation order; or
(b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
9. (2) Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties,in such sum as the court may deem fit.
10. In Kimutai vs Republic [2024] KEHC 6871 (KLR) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
1. Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.
2. Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
3. Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
4. Protection of the community: - where the offender is likely to pose a threat to the community.
5. Offender's responsibility to third parties: where there are people depending on the offender.
11. Also, in the case of Republic v Felix Madalitso Keke Confirmation Appeal No. 404 of 2010 (unreported) the court held as follows:
12. “Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in the public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in society.
13. It is stated in the said Victim Impact Statement that Victim’s family and the accused family were engaged in reconciliation and that the Victim and her father had chose to forgive the Accused. She had since, moved on with a life and made something meaning out of it by acquiring skills in beauty and therapy.
14. What can be deduced from the report is that the Applicant is genuinely remorseful and extremely regrets his actions.
15. It is from the foregoing that the Court finds merit in the Application and directs that the balance of the offender's imprisonment term be commuted to probation. He is placed on probation for a period of six months from the time of release. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Mombasa County Probation Office for appropriate directions on probation.
16. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 23 DAY OF JULY OF 2026
WENDY .K. MICHENI
JUDGE
HIGH COURT OF KENYA AT MOMBASA
2
1. This Ruling emanates from a home-made Notice of Motion by Applicant, Salim Ali Said, wherein he seeks a review of his sentence. The Applicant was charged, convicted and sentenced to serve 5 years’ imprisonment for the offence defilement contrary to section 8 (1) as read with 8 (4) of the Sexual Offences Act. He was however discharged on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act.
2. The particulars of the offense are that on diverse dates between 1 st December ,2021 and 10 th March,2022 the Accused unlawfully and intentionally caused penetration with a child.
3. The Applicant has moved this court beseeching it to exercise its supervisory power of Revision and proceed to set aside the reminder of his sentence and substitute it with a non-custodial sentence.
4. I have considered the application, noting that the same is not opposed by the Respondent, who failed to submit on the same, as at the time of making this determination.
5. The jurisdiction of the High Court in respect to the powers of revision is supervisory and is provided under the Constitution in Articles 165 (6) and (7) and Article 50 (2)(q) of the COK in the following terms respectively:
“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.”
"(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law."
6. Equally, this court's revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code :
"362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court."
7. From the Court’s record the is no reply by the Respondent, Progressive Report by the Prison Administration and Sentencing Review Report by the Probation Officer. On this note, this Court shall proceed to rely on the Victim Impact Assessment dated 29 th , May 2025.
8. Section 4 of the Probation of Offenders Act states that:
"4. Power of court to permit conditional release of offenders
(1) Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may-
(a) convict the offender and make a probation order; or
(b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
9. (2) Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties,in such sum as the court may deem fit.
10. In Kimutai vs Republic [2024] KEHC 6871 (KLR) the court listed the considerations to appreciate when determining a custodial and non-custodial sentencing as follows:
In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors:
1. Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.
2. Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
3. Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
4. Protection of the community: - where the offender is likely to pose a threat to the community.
5. Offender's responsibility to third parties: where there are people depending on the offender.
11. Also, in the case of Republic v Felix Madalitso Keke Confirmation Appeal No. 404 of 2010 (unreported) the court held as follows:
12. “Considerations of the public interest when sentencing offenders must go beyond considerations of deterrence; there is always the consideration that the public whose interest the sentence wants to serve includes the prisoner before the court at first instance. It is in the public interest that sentences are passed which are not cruel, degrading and inhuman. Harsh or lenient sentences may not necessarily serve the public interest; they are likely to have an opposite effect. While sentences must fit the crime, the offender and the victim, they must also fit and cohere with overall sentencing goals, justice, reformation, restoration and rehabilitation. Our sentences may not be in the public interest if they only succeed in instilling crime and fail in bringing the prisoner a better person in society.
13. It is stated in the said Victim Impact Statement that Victim’s family and the accused family were engaged in reconciliation and that the Victim and her father had chose to forgive the Accused. She had since, moved on with a life and made something meaning out of it by acquiring skills in beauty and therapy.
14. What can be deduced from the report is that the Applicant is genuinely remorseful and extremely regrets his actions.
15. It is from the foregoing that the Court finds merit in the Application and directs that the balance of the offender's imprisonment term be commuted to probation. He is placed on probation for a period of six months from the time of release. Unless otherwise lawfully held, he is forthwith released from custody, and handed over to the Mombasa County Probation Office for appropriate directions on probation.
16. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 23 DAY OF JULY OF 2026
WENDY .K. MICHENI
JUDGE
HIGH COURT OF KENYA AT MOMBASA
2