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JudgmentSAMMY RONALD NDEGWA VS The Republic4 min read

SAMMY RONALD NDEGWA 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 5/8/2024 for the offence of stealing contrary to section 268 as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya that on 6/7/2024 at Vikobani area in Jomvu Sub-County within Mombasa County stole one iron sheet valued at KShs 1,200/=the property of Abdhalla Domo Mbati.
  3. 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 the complainant’s compound on the night of 6/7/2024 and collected an old iron sheet from among those kept in the compound. Attracted by the commotion outside the complainant went there and spotted the offender who dropped the iron sheet he had stolen and took off. The complainant pursued and arrested him.
  3. Before sentencing, the prosecution informed the court that the offender had no previous records of conviction. In mitigation, the offender informed the court that he stole because he was hungry. He was engaged in bottle collection and sale. 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 largely for reasons that the offender had several cases of theft within the community even though they had not been pursued by the complainants. There are also other serious offences alleged against him with one pending investigations at the police station and the other was not pursued as it involved his family member. The allegations were however not substantiated. The report generally indicated that the offender had shown remorse, his daughter and mother depend on him but the area administrator expressed his reservations to have him being given a non-custodial sentence for reasons that he was likely to re-offend.
  5. The applicant pleaded guilty to the facts and was convicted and sentenced to pay a fine of KShs 50,000/= or serve six months imprisonment from 5/8/2024.
  6. The sentence review report filed in this court by Nasra Ibrahim, Probation Officer on 9/10/2024 indicates that the offender is due to complete his default sentence on 5/12/2024. That he is now suitable for a non-custodial sentence and recommends that he be committed for community service at Kwa Punda Chief’s office, Kibarani for 3 months.
  7. The offender is aged 27 years. He has been in custody for three months meaning he has served half of his default term of imprisonment. He has no previous record of offending and his family is receptive of his being released early to serve a non-custodial sentence. He has indicated his willingness to perform community service as he has reflected upon his offending ways. I note the concerns of the community expressed in the pre-sentence report. But given that the offender could have paid the fine and be released at any time, a release from custody at this time would not change the circumstances much. If indeed there are substantiated reports of his engaging in other criminal activities, the best option is to bring him before the law for it to take its course as was done in this case.
  8. 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.
  9. In this case, the value of the property stolen is small and the same was recovered and so no economic loss was occasioned to the complainant.
  10. I find that this is a case deserving of a sentence review and even though he was given a non-custodial sentence of a fine, it is apparent that he has been unable to raise the same since he remains in custody to-date. I believe for the time spent in custody, the offender has learned that breaking the law can attract dire consequences however minor the offence may be. I find that the period served prison in default of payment of the fine of is sufficient lesson for that purpose.
  11. The offender’s remainder term of default imprisonment is reviewed to a non-custodial sentence to be served on community service at Kwa Punda Chief’s office, Kibarani for three months. He is accordingly released to the Mombasa Probation and Aftercare department to start his community services sentence.
  12. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 5th day of November, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    SAMMY RONALD NDEGWA VS The Republic SAMMY RONALD NDEGWA VS The Republic