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 offender was convicted and sentenced by the Magistrate’s Court at Kwale on 10/6/2024 on the principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya. He was also charged in the alternative with handling suspected stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code.
3. A summary of the facts of the offences is that the offender went to the complainant’s place of business at an open-air market and picked the mobile phones from her stock and upon the complainant confronting him he took off with them. He was apprehended afterwards by members of the public. The stolen mobile phones of assorted make were valued at KShs 23,100/= the property of Chari Charo Kazungu. Two of the phones were later recovered with the offender upon apprehension.
4. The offender pleaded guilty to the charge and was convicted and sentenced.
5. 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.”
6. 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.”
7. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
8. Before sentencing, the prosecution informed the trial court that this was a first offender.
9. In mitigation, the offender asked for lenience stating that his parents had separated and so he had to survive on his own. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
10. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the offender for a non-custodial sentence. The community administrator described the offender as a nuisance to the community due to numerous incidents of theft reported against him. That he is in a gang of three members and as such his security cannot be guaranteed as the members of the community may harm him. He reasoned that a non-custodial sentence would not be helpful to him.
11. The report indicated that the offender was remorseful and asked for lenience from the court urging that he had learnt his lessons for the time he had been in custody.
12. The offender was sentenced to pay a fine of KShs 15,000/= or serve 8 months imprisonment. He is still in custody.
13. The sentence review report filed in this court by Joy Chelimo, Probation Officer on 17/10/2024 following this court’s directions on decongestion indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service.
14. The offender is aged 19 years, barely out of his childhood. He has been in custody for about 5 months including remand period. He has no previous record of offending before except for the reports by the community administrator that he is a habitual offender without more information on the offences. His family is willing to assist him on rehabilitation indicating that they believe the time spent in custody is sufficient for him to have learnt a lesson. The offender has indicated his willingness to perform community service.
15. 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.
16. In this case, the value of the property stolen is not high. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be. Given his young age, I find that the period served is sufficient for that purpose.
17. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Mwangulu primary school for a period of 3 months. He is accordingly released to the Kwale Probation and Aftercare department to start his non-custodial sentence.
18. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 5th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
2. The offender was convicted and sentenced by the Magistrate’s Court at Kwale on 10/6/2024 on the principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya. He was also charged in the alternative with handling suspected stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code.
3. A summary of the facts of the offences is that the offender went to the complainant’s place of business at an open-air market and picked the mobile phones from her stock and upon the complainant confronting him he took off with them. He was apprehended afterwards by members of the public. The stolen mobile phones of assorted make were valued at KShs 23,100/= the property of Chari Charo Kazungu. Two of the phones were later recovered with the offender upon apprehension.
4. The offender pleaded guilty to the charge and was convicted and sentenced.
5. 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.”
6. 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.”
7. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
8. Before sentencing, the prosecution informed the trial court that this was a first offender.
9. In mitigation, the offender asked for lenience stating that his parents had separated and so he had to survive on his own. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
10. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the offender for a non-custodial sentence. The community administrator described the offender as a nuisance to the community due to numerous incidents of theft reported against him. That he is in a gang of three members and as such his security cannot be guaranteed as the members of the community may harm him. He reasoned that a non-custodial sentence would not be helpful to him.
11. The report indicated that the offender was remorseful and asked for lenience from the court urging that he had learnt his lessons for the time he had been in custody.
12. The offender was sentenced to pay a fine of KShs 15,000/= or serve 8 months imprisonment. He is still in custody.
13. The sentence review report filed in this court by Joy Chelimo, Probation Officer on 17/10/2024 following this court’s directions on decongestion indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service.
14. The offender is aged 19 years, barely out of his childhood. He has been in custody for about 5 months including remand period. He has no previous record of offending before except for the reports by the community administrator that he is a habitual offender without more information on the offences. His family is willing to assist him on rehabilitation indicating that they believe the time spent in custody is sufficient for him to have learnt a lesson. The offender has indicated his willingness to perform community service.
15. 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.
16. In this case, the value of the property stolen is not high. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be. Given his young age, I find that the period served is sufficient for that purpose.
17. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Mwangulu primary school for a period of 3 months. He is accordingly released to the Kwale Probation and Aftercare department to start his non-custodial sentence.
18. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 5th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.