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JudgmentSTEPHEN MUMANTHI NDUKU VS The Republic4 min read

STEPHEN MUMANTHI NDUKU 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 14/2/2024 for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code that on 11/1/2024 at Mwanjirini area in Likoni Sub-County within Mombasa County unlawfully assaulted his mother Liberata Nduki Nyagah thereby occasioning her actual bodily harm.
  3. The applicant pleaded guilty to the charge and was convicted and sentenced to 18 months imprisonment.
  4. 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 applicant is a son of the complainant. On the material day, he slapped his mother for obstructing his way as he was leaving their one roomed-rented house which they share. The complainant suffered a tender and swollen occipital.
  3. Before sentencing, the prosecution informed the court that the applicant was a first offender. In mitigation, the applicant said he had nothing to say. 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. The applicant was cast as an irresponsible and lazy young man who depended on his mother for his upkeep. He demands money from her for his recreation with drugs and when denied he turns violent. The victim reported that the applicant had assaulted her twice before and expressed fears that in spite of her love for him, she was worried that his behavoiur might be a danger to her. The community administrator indicated that he had not heard of any adverse reports about the applicant. The Probation Officer attributed this to the mother concealing the applicant’s unbecoming conduct from the public.
  5. The report further indicated that at the time of interview, the applicant did not take responsibility for the offence but blamed the mother for provoking him.
  6. The sentence review report filed in this court by Nasra Ibrahim, Probation Officer now indicates that the applicant is suitable for a non-custodial sentence. He is aged 24 years. He has been in custody for about nine months and is due for release on 14/2/2025.
  7. The complainant, the applicant’s mother now support’s his release from custody. It is indicated that the complainant has forgiven the applicant, she visits him in prison custody frequently. The applicant on his part is receptive to non-custodial sentence and has promised to be law abiding.
  8. The report recommends that the applicant may be released on community service..
  9. 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. I note that there were no aggravating circumstances such as serious injury caused to the complainant or use of a weapon. What aggravated the situation and called for a custodial sentence were reports that the applicant assaulted the complainant two times before and he had not taken responsibility for his actions. Those circumstances seem to have changed now with the complainant indicating that she has forgiven the applicant and she has demonstrated this by constant visits to him in prison.
  10. Considering the circumstances of the offence, the sentence review report and the young age of the applicant, I find that this is a case deserving of a sentence review.
  11. I consider the custodial sentence so far served to be sufficient to enable him understand that breaking the law attracts dire consequences. Consequently, this court now directs that the applicant’s remaining term of imprisonment is reviewed and substituted with a commitment to for him to serve community service for 4 months at Likoni police station. He shall be released to the Mombasa Probation and Aftercare department to undertake the sentence.
  12. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 31st day of October, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    STEPHEN MUMANTHI NDUKU VS The Republic STEPHEN MUMANTHI NDUKU VS The Republic