REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E009 OF 2025
(Coram: Andayi W. F., J.)
HUSSEIN BAKARI…………………..………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
(Application for Review of sentence arising from the sentence of the Magistrate’s Court at Msambweni in Criminal Case No. E012 of 2025 by Hon. L. W. Kabaria (P.M). delivered on 8/1/2025)
RULING
1. This matter is placed before me for review of sentence under Article 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 me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on a charge of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 3/1/2025 at an unknown time at Dori Girls secondary school in Kinondo location of Kwale County within Coast region, with others not before court they broke and entered the ICT room of Dori Girls secondary school and stole 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables all valued at KShs 189,000/=, the property of Dori Girsl Secondary school.
4. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that on 6/1/2025 at Dori Girls secondary school in Kinondo location of Kwale County within Coast region, otherwise than in the course of stealing, dishonestly retained 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables knowing or having reasons to believe it to be stolen goods.
5. The offence of breaking into a building and committing a felony therein is provided for under section 306(a) of the Penal Code as follows:
S. 306. Any person who—
(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or
(b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years.
6. The brief facts of the case were that the offender was captured by CCTV breaking through the window into the Dori Girls secondary school ICT room, vandalizing the ICT equipment and carting some of them away. The matter was reported to the police who circulated the CCTV images. The village elders were able to identify the offender as the culprit in the CCTV images which led to the offender being traced and arrested on. He led the police officers to a thicket next to the school compound where most of the stolen items namely 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables were recovered.
7. Before sentence the prosecution informed the court that the offender had no previous records of conviction. The offender said in mitigation that he was with someone else whom he named when they committed the offence. His colleague told him that the CCTV would be off. He asked for pardon.
8. The trial court did not call for a pre-sentence report before sentencing. The same is normally useful in determining an appropriate sentence upon an accused person. The trial court sentenced him to 8 months’ imprisonment.
9. The sentence review report filed herein is favourable and indicates that he be released unconditionally. He has about one month remaining to serve. I believe remission of the sentence by one-third has been factored in.
10. The actions of the offender affected a large section and sensitive member of the community namely a school. It may seem small especially since most of the items were recovered but considering the magnitude of impact of the offence upon an entire school community, the same can lead to a paralysis of learning and impacting of knowledge to the students in various subjects in the school thereby leading to poor performance. I am satisfied that the sentence imposed was commensurate to the offence committed.
11. Consequently, the offender’s sentence is NOT reviewed and he will serve the sentence as imposed by the trial court to completion.
12. This file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29th 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 KWALE
CRIMINAL REVISION NO. E009 OF 2025
(Coram: Andayi W. F., J.)
HUSSEIN BAKARI…………………..………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
(Application for Review of sentence arising from the sentence of the Magistrate’s Court at Msambweni in Criminal Case No. E012 of 2025 by Hon. L. W. Kabaria (P.M). delivered on 8/1/2025)
RULING
1. This matter is placed before me for review of sentence under Article 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 me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on a charge of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 3/1/2025 at an unknown time at Dori Girls secondary school in Kinondo location of Kwale County within Coast region, with others not before court they broke and entered the ICT room of Dori Girls secondary school and stole 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables all valued at KShs 189,000/=, the property of Dori Girsl Secondary school.
4. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that on 6/1/2025 at Dori Girls secondary school in Kinondo location of Kwale County within Coast region, otherwise than in the course of stealing, dishonestly retained 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables knowing or having reasons to believe it to be stolen goods.
5. The offence of breaking into a building and committing a felony therein is provided for under section 306(a) of the Penal Code as follows:
S. 306. Any person who—
(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or
(b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years.
6. The brief facts of the case were that the offender was captured by CCTV breaking through the window into the Dori Girls secondary school ICT room, vandalizing the ICT equipment and carting some of them away. The matter was reported to the police who circulated the CCTV images. The village elders were able to identify the offender as the culprit in the CCTV images which led to the offender being traced and arrested on. He led the police officers to a thicket next to the school compound where most of the stolen items namely 4 central processing units (CPU), 1 monitor, 2 key boards, 1 charge, 1 power extension and 3 computer cables were recovered.
7. Before sentence the prosecution informed the court that the offender had no previous records of conviction. The offender said in mitigation that he was with someone else whom he named when they committed the offence. His colleague told him that the CCTV would be off. He asked for pardon.
8. The trial court did not call for a pre-sentence report before sentencing. The same is normally useful in determining an appropriate sentence upon an accused person. The trial court sentenced him to 8 months’ imprisonment.
9. The sentence review report filed herein is favourable and indicates that he be released unconditionally. He has about one month remaining to serve. I believe remission of the sentence by one-third has been factored in.
10. The actions of the offender affected a large section and sensitive member of the community namely a school. It may seem small especially since most of the items were recovered but considering the magnitude of impact of the offence upon an entire school community, the same can lead to a paralysis of learning and impacting of knowledge to the students in various subjects in the school thereby leading to poor performance. I am satisfied that the sentence imposed was commensurate to the offence committed.
11. Consequently, the offender’s sentence is NOT reviewed and he will serve the sentence as imposed by the trial court to completion.
12. This file is closed.
13. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 29th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE