The Republic AND ALEX NDUNDA MUTUA AND 1 Others VS

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 offenders were convicted for the offence of malicious damage to property contrary to section 339(1) of the Penal Code that on 29/11/2023 at an unknown time at Mwabungo village, Kinondo location in Kwale County within Coast region willfully and unlawfully damaged a grill gate the property of Rose Mwikali Mutua 
3. 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. Article 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. The brief facts of the case are that the offenders who are the victim’s sons damaged the family gate for no apparent reason and when questioned by their mother, they lay blame on each other.
2. Before sentencing, the prosecutor informed the court that the two offenders had one previous conviction of creating disturbance in a manner likely to cause a breach of the peace against their mother, the same complainant in the present case.
3. The trial court called for and relied upon a pre-sentence report filed by the Probation and Aftercare department to assist it in meting out an appropriate sentence. The report in respect of each offender indicated that the offender was not suitable for a non-custodial sentence. They were troublesome both to the family and the community and they were involved in numerous cases of theft. They were described as arrogant and irresponsible and dependent on their mother in spite of their mature ages of 33 years.
4. Even though they were remorseful, they were sentenced to one and half years imprisonment without the option of a fine. 
5. The sentence review reports filed in this court in respect of each offender on 17/10/2024 by Alfred Mwasaru Tole Probation Officer from the Probation and Aftercare Service Department as per this court’s directions dated 1/10/2024 requesting for the same is now positive that the offenders both aged 33 years have reformed and are suitable for a non-custodial sentence.
6. The report recommends that the offenders may be released to serve a non-custodial sentence of community service.
7. 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.
8. Considering the circumstances of the offence and the sentence review reports, I find that this is a case deserving of a non-custodial sentence.
9. Consequently, I consider the custodial sentence so far served to be sufficient for the offenders’ reformation. Their sentences are reviewed to provide that each of them shall serve a term of imprisonment so far spent in prison and in addition each of the offenders be and is hereby committed to serve six months community service at Mwabungo primary school. They are both hereby released to the Kwale Probation and Aftercare department office to start the new sentence.
10. Orders accordingly.

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

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.