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JudgmentSULEIMAN RAMADHAN VS The Republic5 min read

SULEIMAN RAMADHAN VS The Republic

High Court at Mombasa High Court · · Andayi W.F.

  1. This matter is placed before me 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 22/4/2024 for two offences. The first was assault causing actual bodily harm contrary to section 251 of the Penal Code that on 29/3/2024 at Coast General hospital area in Mvita Sub-County within Mombasa County assaulted Ann Yumbya thereby occasioning her actual bodily harm. I note that the drafting of this offence was not precise for omitting to indicate a vital ingredient of the offence being that the assault was unlawful.
  3. The second count was creating disturbance contrary to section 95(1) of the Penal Code that on the same day at around 1.30 a.m. while in a hotel created disturbance in a manner likely to cause a breach of the peace. Again, the drafter of the charge failed to indicate in the charging section that the disturbance was in a manner likely to cause a breach of the peace and in the particulars of the charge, the action done by the applicant so as to amount to creating a disturbance.
  4. In spite of those errors, this matter not coming up for revision or appeal but only for review of sentence I will not delve into the ramifications of those omissions save to state that under appropriate proceedings, they can lead to quashing of the charges. The prosecution and the court taking plea should be careful to go through the charges to ensure that they are properly drafted before they are put to the accused person for plea taking.
  5. The applicant pleaded guilty to the charges and was convicted and sentenced to 12 months imprisonment on the charge of assault causing actual bodily harm and six months imprisonment, the maximum penalty for the offence of creating disturbance in a manner likely to cause a breach of the peace. The sentences are to run concurrently meaning that he is required to spend 12 months in custody.
  6. This matter comes up for review of sentence as provided for under 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. On the other hand, Articles 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts 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. I have perused the trial court file proceedings forwarded to this court.
  2. According to the facts recorded by the trial court at plea taking, the applicant stomped into a hotel operated by the complainant and without any reason hurled insults at her and in spite of the complainant pleading with him to stop the insults in front of customers he went on and slapped her on the forehead as a result of which the complainant nosebleed. She left to make a report and seek medical attention. When she returned afterwards the applicant went back and turned to the customers insulting them and he told the complainant that the hotel will not operate if the complainant refused to date him. Police were called in and he was arrested.
  3. Before sentencing, the prosecution informed the court that the applicant was a first offender. In mitigation, the applicant asked the complainant who was present for forgiveness but she declined his offer stating that it was not the first time he had insulted her.
  4. The applicant was then sentenced as indicated above.
  5. I note that the trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence.
  6. I have considered the sentence review report filed in this court on 16/10/2024 by Nasra Ibrahim, Probation Officer from the Probation and Aftercare Service Department as per this court’s directions dated 19/9/2024 requesting for the same.
  7. The sentence review report filed herein indicates that the applicant is a truck driver. He is aged 42 years. He has a wife and four children aged 22 years and 3 years. The complainant is his girlfriend for whom he opened a vegetable-selling kiosk but he feels that she is cheating on him because every time he passes by he finds one particular man there. He has acknowledged his wrongs and regrets committing the offence and prays for forgiveness. He promises to abide by the law. He has been in custody for about six months and three weeks and is due to complete his sentence on 12/12/2024.
  8. There is no indication that the complainant was sought to give her views on the release of the applicant. That was a great omission that the Probation Officer should check in future. The views of a victim of an offence on the sentence to be meted out to the offender are crucial before sentencing and even upon review of sentence as in the present case.
  9. The report recommends that the applicant may be released to serve community service for 4 months at Tononoka police station.
  10. Section 3 of the Community Service Orders Act provides that:

“Where any person is convicted of an offence punishable with—

  1. imprisonment for a term not exceeding three years, with or without the option of a fine; or
  2. imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate,

the court may, subject to this Act, make a community service order requiring the offender to perform community service.

  1. Fair administration of justice as provided for under Article 50(2)(q) under which this review is proceeding requires that a sentence be commensurate to the facts of the case. Clearly, the applicant’s case deserved to be considered under these provisions of the law even as it is not mandatory that he be considered for a non-custodial sentence. There were no aggravating circumstances such as serious injury caused, use of a weapon or such.
  2. Considering the circumstances of the offence and the sentence review report, I find that this was a case deserving of a non-custodial sentence.
  3. Consequently, I find that this is a case suitable for review of sentence. I consider the custodial sentence so far served to be sufficient and now direct that the applicant be and is hereby placed on probation and released to a Probation Officer forthwith to serve four months’ probation under the Mombasa Probation and Aftercare department office.
  4. 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.


    SULEIMAN RAMADHAN VS The Republic SULEIMAN RAMADHAN VS The Republic