REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E015 OF 2025
(Coram: Andayi W. F., J.)
HUSEIN NASORO……………..……..…………………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 Husein Nasoro was charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code (Cap. 63) Laws of Kenya that on 14/11/2024 at around 2000 Hours at Nyando village, Tsimba Golini location, Matuga Sub-County in Kwale County within Coast region without lawful excuse he uttered threatening words “nitakukata kichwa ama nikufanye mke na kama sitakukata kichwa nitakufanya mke” to Nadzua Kaongi Chikophe.
4. A summary of the facts narrated by the prosecution at plea were that offender came hom e on the material evening at around 8.00 p.m. and found his mother Nadzua Kaongi Chikophe preparing a meal in the kitchen and without any cause uttered the threatening words “nitakukata kichwa ama nikufanye mke na kama sitakukata kichwa nitakufanya mke” for no apparent reason. Feeling threatened, the mother went to seek refuge at a neighbour’s home. The neighbor took her back to her home where they found the offender who got armed with a stone and continued to threaten his mother with the same words against the pleas of the neighbor for him to calm down. The mother left and reported to the village chairman who advised her to report to the police. The offender was subsequently arrested and charged.
5. The offender pleaded guilty to the charge. He was sentenced to serve one-year imprisonment without the option of a fine.
6. In mitigation, the offender said he was remorseful and asked for lenience. The prosecution said that he was a first offender.
7. Before sentence, the trial court called for a pre-sentence report which was made available by a probation officer. The report indicated that the offender was said to be remorseful. The victim on her part expressed fear that the offender’s conduct paused fear to her and the offender’s four siblings one of them who suffers a mental disability and also the offender’s aged grandmother who are averse to outbursts from the offender. His brothers and uncle viewed him as a threat due to his violent and unpredictable conduct.
8. The community through the area chairman described him as troublesome and a drug abuser who commits petty thefts. The investigating officer reported that the offender’s mother had reported him to the police severally before but withdrawn the complaints.
9. According to the report, all the people interviewed supported measures to remove him from the community thus a non-custodial sentence was not suitable.
10. The sentence review report filed herein on 24/4/2025 indicates that the offender is still remorseful. He has undergone rehabilitation while serving the prison term and was engaged in tree planting and food crop cultivation. He promises to use the skills acquired to engage in farming and earn a living.
11. His family reports that they have healed and are ready to receive him back into the family. The area chief also says he can be reintegrated into the community. He is thus recommended for a non-custodial sentence of community service.
12. 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.”
13. 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.”
14. 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.”
15. The offence of threatening to kill is a felony and the punishment is a term of ten years imprisonment. The offender was sentenced to serve one-year imprisonment.
16. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the sentence. However, since the offence of threatening to kill carries a maximum term of 10 years imprisonment but the learned trial magistrate was minded to impose a sentence of less than three years imprisonment, 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. In that respect, the offender ought to have benefitted from a non-custodial sentence.
17. 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”.
18. In my considered view, fair administration of justice as provided for under Article 50(2)(q) of the Constitution under which this review is proceeding means that a sentence be commensurate to the facts of the case and for me this includes a review of the sentence.
19. Considering the circumstances of the offence and the sentence review report, I find that this is a case deserving of a sentence review.
20. The offender has so far served about six months of his term. I consider the custodial sentence so far served to be sufficient for the offender’s reformation. Consequently, his sentence is reviewed to provide that he shall serve the remainder of his sentence on community service for three (3) months at Bila Shaka primary school. He is hereby released from custody immediately to the Kwale Probation and Aftercare department office to start his community service sentence.
21. It is so ordered.
22. The file is closed.
Judgment 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. E015 OF 2025
(Coram: Andayi W. F., J.)
HUSEIN NASORO……………..……..…………………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 Husein Nasoro was charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code (Cap. 63) Laws of Kenya that on 14/11/2024 at around 2000 Hours at Nyando village, Tsimba Golini location, Matuga Sub-County in Kwale County within Coast region without lawful excuse he uttered threatening words “nitakukata kichwa ama nikufanye mke na kama sitakukata kichwa nitakufanya mke” to Nadzua Kaongi Chikophe.
4. A summary of the facts narrated by the prosecution at plea were that offender came hom e on the material evening at around 8.00 p.m. and found his mother Nadzua Kaongi Chikophe preparing a meal in the kitchen and without any cause uttered the threatening words “nitakukata kichwa ama nikufanye mke na kama sitakukata kichwa nitakufanya mke” for no apparent reason. Feeling threatened, the mother went to seek refuge at a neighbour’s home. The neighbor took her back to her home where they found the offender who got armed with a stone and continued to threaten his mother with the same words against the pleas of the neighbor for him to calm down. The mother left and reported to the village chairman who advised her to report to the police. The offender was subsequently arrested and charged.
5. The offender pleaded guilty to the charge. He was sentenced to serve one-year imprisonment without the option of a fine.
6. In mitigation, the offender said he was remorseful and asked for lenience. The prosecution said that he was a first offender.
7. Before sentence, the trial court called for a pre-sentence report which was made available by a probation officer. The report indicated that the offender was said to be remorseful. The victim on her part expressed fear that the offender’s conduct paused fear to her and the offender’s four siblings one of them who suffers a mental disability and also the offender’s aged grandmother who are averse to outbursts from the offender. His brothers and uncle viewed him as a threat due to his violent and unpredictable conduct.
8. The community through the area chairman described him as troublesome and a drug abuser who commits petty thefts. The investigating officer reported that the offender’s mother had reported him to the police severally before but withdrawn the complaints.
9. According to the report, all the people interviewed supported measures to remove him from the community thus a non-custodial sentence was not suitable.
10. The sentence review report filed herein on 24/4/2025 indicates that the offender is still remorseful. He has undergone rehabilitation while serving the prison term and was engaged in tree planting and food crop cultivation. He promises to use the skills acquired to engage in farming and earn a living.
11. His family reports that they have healed and are ready to receive him back into the family. The area chief also says he can be reintegrated into the community. He is thus recommended for a non-custodial sentence of community service.
12. 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.”
13. 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.”
14. 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.”
15. The offence of threatening to kill is a felony and the punishment is a term of ten years imprisonment. The offender was sentenced to serve one-year imprisonment.
16. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the sentence. However, since the offence of threatening to kill carries a maximum term of 10 years imprisonment but the learned trial magistrate was minded to impose a sentence of less than three years imprisonment, 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. In that respect, the offender ought to have benefitted from a non-custodial sentence.
17. 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”.
18. In my considered view, fair administration of justice as provided for under Article 50(2)(q) of the Constitution under which this review is proceeding means that a sentence be commensurate to the facts of the case and for me this includes a review of the sentence.
19. Considering the circumstances of the offence and the sentence review report, I find that this is a case deserving of a sentence review.
20. The offender has so far served about six months of his term. I consider the custodial sentence so far served to be sufficient for the offender’s reformation. Consequently, his sentence is reviewed to provide that he shall serve the remainder of his sentence on community service for three (3) months at Bila Shaka primary school. He is hereby released from custody immediately to the Kwale Probation and Aftercare department office to start his community service sentence.
21. It is so ordered.
22. The file is closed.
Judgment 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