REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E014 OF 2025
(Coram: Andayi W. F., J.)
HAMISI MWALIMU DIYA……………..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws 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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted on two counts for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya.
4. Particulars of the first count were that on 21/1/2025 at around 1330 Hours at Ng’ombeni area in Matuga Sub-County within Kwale County, unlawfully assaulted Juma Hamisi thereby occasioning him actual bodily harm.
5. Particulars of the second count were that on 21/1/2025 at around 1400 Hours at Ng’ombeni area in Matuga Sub-County within Kwale County, unlawfully assaulted Mwanamvua Kassim thereby occasioning her actual bodily harm.
6. He was sentenced on each count to a fine of KShs 50,000/= in default to serve 12 months imprisonment. The default sentences of imprisonment were directed to run concurrently.
7. The facts of the case were that the offender is a step-son of the second complainant and a brother to the first complainant. The 2nd complainant (step-mother) gave food to the 1st complainant (brother) whereupon the offender took it away forcefully. When the step-mother intervened, the offender beat both of them, the 1st complainant with a stone and his step-mother on her head and back. Neighbours intervened and stopped him. He was subsequently arrested and charged.
8. According to the P3 forms, the step-mother sustained the following injuries: a swollen and tender forehead, bruised, swollen and tender hands and bruised swollen and tender left knee. The brother sustained: swollen tender right forearm, tenderness on left lower back, tenderness on left shoulder, tenderness on left lower abdomen, swollen, bruised and tender right forearm, tenderness on the left arm, tenderness and bruised left knee.
9. The learned prosecution counsel indicated that the offender was a first offender. In mitigation the offender said that the 1st complainant had also wronged him by stealing his property but he did not report the matter. He said he was ready to compensate the complainants.
10. The trial court called for a pre-sentence report which it noted was negative, indicating that the applicant never acknowledged his wrongdoing and he was not remorseful. The victims were afraid that he had become uncontrollable. His mother had to relocate from home fearing for her life. The report also indicated that the offender had many cases of misconduct arising from drug abuse as reported by the area assistant chief. I have not had sight of the report though as I have not traced it in the file.
11. A sentence review report dated 24/4/2025 has been placed before this court and it indicates that the offender is aged 21 years. He has served 2 months imprisonment and remains to serve 10 months. The report indicates that the offender has reformed and learnt some life survival skills being horticultural activities while in prison. There is however no report from the complainants or the offender’s community’s feelings towards him at the moment.
12. The report recommends that he be placed on community service at Denyenye primary school in Ng’ombeni location.
13. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
1. The learned trial magistrate proceeded correctly to impose a sentence of a fine upon the offender. However, she fell into error in imposing an excessive default term of imprisonment and directing that the same should run concurrently. Under section 28(2) of the Penal Code, the maximum default term for a fine of KShs 50,000/= is six months imprisonment and under the proviso to section 37 of the Penal Code it is not lawful for a court to direct that a sentence of imprisonment in default of payment of a fine be executed concurrently with a former sentence. These two errors therefore must be corrected by this court to provide that in default of payment of the fines the offender shall serve a term of three months’ imprisonment for each, making a total of six months’ imprisonment.
2. The circumstances of this case would show that in no way can the offender afford the fine. He was fighting over food with his sibling. That does not show a person capable of raising KShs 100,000/= at all leave alone in six or even 12 months. He is still in custody, a clear indication that he has failed to raise that money.
3. Since the offence of assault causing actual bodily harm carries a maximum term of 5 years imprisonment and the learned trial magistrate was minded to impose a non-custodial sentence upon the offender by way of fine, and considering that by all means the offender was not going to afford the fine, she ought to have been guided by the provisions of section 3(1)(b) of the Community Service Orders Act (Cap. 93) Laws of Kenya which provides that where any person is convicted of an offence punishable with 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. Otherwise, the imposition of the fine was equivalent to sending the offender to prison for 12 months.
4. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
5. The circumstances of the offence did not warrant a prison term or a fine that would inevitably lead the offender to serve a prison term, especially considering the issue of congestion in Kenya’s prison system. In this respect, I am persuaded to follow the reasoning of Odunga, J. (as he then was) in the case of Patrick Muli Mukutha v Republic [2019] eKLR, where after citing several authorities on the issue of the discretion of the trial court in sentencing and upon considering the principles that “the Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors” was moved to add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.
6. I have said enough above to show that the sentence imposed upon the offender herein was manifestly excessive. I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
7. Accordingly, the offender’s sentence is reviewed. He will serve the remainder of the default term of imprisonment of 3 months by way of community service at Denyenye primary school. He is thus released to the Probation and Aftercare department, Kwale County to direct him on how to perform the said community service. The offender to be released from custody forthwith unless otherwise lawfully held.
8. Consequently, this file is closed.
9. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 6th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL REVISION NO. E014 OF 2025
(Coram: Andayi W. F., J.)
HAMISI MWALIMU DIYA……………..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws 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 Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted on two counts for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya.
4. Particulars of the first count were that on 21/1/2025 at around 1330 Hours at Ng’ombeni area in Matuga Sub-County within Kwale County, unlawfully assaulted Juma Hamisi thereby occasioning him actual bodily harm.
5. Particulars of the second count were that on 21/1/2025 at around 1400 Hours at Ng’ombeni area in Matuga Sub-County within Kwale County, unlawfully assaulted Mwanamvua Kassim thereby occasioning her actual bodily harm.
6. He was sentenced on each count to a fine of KShs 50,000/= in default to serve 12 months imprisonment. The default sentences of imprisonment were directed to run concurrently.
7. The facts of the case were that the offender is a step-son of the second complainant and a brother to the first complainant. The 2nd complainant (step-mother) gave food to the 1st complainant (brother) whereupon the offender took it away forcefully. When the step-mother intervened, the offender beat both of them, the 1st complainant with a stone and his step-mother on her head and back. Neighbours intervened and stopped him. He was subsequently arrested and charged.
8. According to the P3 forms, the step-mother sustained the following injuries: a swollen and tender forehead, bruised, swollen and tender hands and bruised swollen and tender left knee. The brother sustained: swollen tender right forearm, tenderness on left lower back, tenderness on left shoulder, tenderness on left lower abdomen, swollen, bruised and tender right forearm, tenderness on the left arm, tenderness and bruised left knee.
9. The learned prosecution counsel indicated that the offender was a first offender. In mitigation the offender said that the 1st complainant had also wronged him by stealing his property but he did not report the matter. He said he was ready to compensate the complainants.
10. The trial court called for a pre-sentence report which it noted was negative, indicating that the applicant never acknowledged his wrongdoing and he was not remorseful. The victims were afraid that he had become uncontrollable. His mother had to relocate from home fearing for her life. The report also indicated that the offender had many cases of misconduct arising from drug abuse as reported by the area assistant chief. I have not had sight of the report though as I have not traced it in the file.
11. A sentence review report dated 24/4/2025 has been placed before this court and it indicates that the offender is aged 21 years. He has served 2 months imprisonment and remains to serve 10 months. The report indicates that the offender has reformed and learnt some life survival skills being horticultural activities while in prison. There is however no report from the complainants or the offender’s community’s feelings towards him at the moment.
12. The report recommends that he be placed on community service at Denyenye primary school in Ng’ombeni location.
13. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
1. The learned trial magistrate proceeded correctly to impose a sentence of a fine upon the offender. However, she fell into error in imposing an excessive default term of imprisonment and directing that the same should run concurrently. Under section 28(2) of the Penal Code, the maximum default term for a fine of KShs 50,000/= is six months imprisonment and under the proviso to section 37 of the Penal Code it is not lawful for a court to direct that a sentence of imprisonment in default of payment of a fine be executed concurrently with a former sentence. These two errors therefore must be corrected by this court to provide that in default of payment of the fines the offender shall serve a term of three months’ imprisonment for each, making a total of six months’ imprisonment.
2. The circumstances of this case would show that in no way can the offender afford the fine. He was fighting over food with his sibling. That does not show a person capable of raising KShs 100,000/= at all leave alone in six or even 12 months. He is still in custody, a clear indication that he has failed to raise that money.
3. Since the offence of assault causing actual bodily harm carries a maximum term of 5 years imprisonment and the learned trial magistrate was minded to impose a non-custodial sentence upon the offender by way of fine, and considering that by all means the offender was not going to afford the fine, she ought to have been guided by the provisions of section 3(1)(b) of the Community Service Orders Act (Cap. 93) Laws of Kenya which provides that where any person is convicted of an offence punishable with 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. Otherwise, the imposition of the fine was equivalent to sending the offender to prison for 12 months.
4. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
5. The circumstances of the offence did not warrant a prison term or a fine that would inevitably lead the offender to serve a prison term, especially considering the issue of congestion in Kenya’s prison system. In this respect, I am persuaded to follow the reasoning of Odunga, J. (as he then was) in the case of Patrick Muli Mukutha v Republic [2019] eKLR, where after citing several authorities on the issue of the discretion of the trial court in sentencing and upon considering the principles that “the Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors” was moved to add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.
6. I have said enough above to show that the sentence imposed upon the offender herein was manifestly excessive. I am satisfied that the offender is suitable for a sentence review to a non-custodial sentence.
7. Accordingly, the offender’s sentence is reviewed. He will serve the remainder of the default term of imprisonment of 3 months by way of community service at Denyenye primary school. He is thus released to the Probation and Aftercare department, Kwale County to direct him on how to perform the said community service. The offender to be released from custody forthwith unless otherwise lawfully held.
8. Consequently, this file is closed.
9. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 6th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE