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JudgmentThe Republic AND BADI CHIKOPHE NYIRO VS3 min read

The Republic AND BADI CHIKOPHE NYIRO VS

High Court at Kwale 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 on two counts. The first was for the offence of assaulting a police officer contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya that on 4/6/2024 at Lunga Lunga ACC’s office in Lunga Lunga Sub-County within Kwale County, willfully and unlawfully assaulted No. 256078 APC Henry Kiptanui thereby occasioning him actual bodily harm. He was sentenced to a fine of KShs 50,000/= in default to serve 1-year imprisonment. The second count was creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1) of the Penal Code (Cap. 63) Laws of Kenya that on the same day, at the same place and time, he created a disturbance by pulling and pushing furniture while uttering abusive words “polisi ni wajinga” to No. 256078 APC Henry Kiptanui with intent to annoy him.
  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. 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. The facts show that at the time he committed the offences the offender appeared drunk.
  2. Although the trial court had deferred submission of records of conviction, if any, by the prosecution and mitigation by the offender to be done later, I note that in fact this was never done.
  3. The trial  court however 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 indicated that the offender was not suitable for a non-custodial sentence.
  4. The offender was sentenced to a fine of KShs 50,000/= in default to serve 1 year imprisonment for the offence of assaulting a police officer and to six months imprisonment, the maximum sentence for the offence of creating disturbance in a manner likely to cause a breach of the peace. If he does not manage to pay the fine he will serve 12 months’ imprisonment from 4/6/2024  as the imprisonment terms were to run concurrently. He has so far served five months in prison. 
  5. The sentence review report filed in this court on 17/10/2024 by Scholar Chepkurui 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 offender now aged 44 years has reformed and is suitable for a non-custodial sentence.
  6. The report recommends that the offender 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 report, 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 offender’s reformation. His sentence is reviewed to provide that he shall serve imprisonment for the term so far spent in prison and in addition the offender be and is hereby committed to serve six months community service at Lunga Lunga Chief’s office. He is 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 5th day of October, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    The Republic AND BADI CHIKOPHE NYIRO VS The Republic AND BADI CHIKOPHE NYIRO VS