REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E012 OF 2025
(Coram: Andayi W. F., J.)
JOHN MULWA MWANGANGI……..…………………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 for the offence of malicious damage to property contrary to section 339(1) of the Penal Code (Cap. 63) Laws of Kenya.
4. Particulars of the offence were that on the night of 22nd and 23rd January 2025 at around 0200 Hours at around Magodi village in Kinondo location of Kwale County within Coast region he willfully and unlawfully destroyed 4 plastic chairs valued at KShs 4,000/= the property of Martha Kavisa Nyamai.
5. He was sentenced to a fine of KShs 10,000/= in default to serve 6 months imprisonment.
6. 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.”
7. The learned trial magistrate proceeded correctly to impose a sentence of a fine upon the offender as the offence was not serious and there were no aggravating circumstances to call for a more severe penalty. However, she fell into error in imposing an excessive default term of imprisonment. Under section 28(2) of the Penal Code, the maximum default term for a fine of KShs 10,000/= is 3 months imprisonment. This error therefore must be corrected by this court to provide that in default of payment of the fine the offender shall serve a term of three months’ imprisonment.
8. This means that the offender has completed his default term of imprisonment and consequently, he should be set at liberty forthwith unless otherwise lawfully held.
9. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th 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. E012 OF 2025
(Coram: Andayi W. F., J.)
JOHN MULWA MWANGANGI……..…………………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 for the offence of malicious damage to property contrary to section 339(1) of the Penal Code (Cap. 63) Laws of Kenya.
4. Particulars of the offence were that on the night of 22nd and 23rd January 2025 at around 0200 Hours at around Magodi village in Kinondo location of Kwale County within Coast region he willfully and unlawfully destroyed 4 plastic chairs valued at KShs 4,000/= the property of Martha Kavisa Nyamai.
5. He was sentenced to a fine of KShs 10,000/= in default to serve 6 months imprisonment.
6. 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.”
7. The learned trial magistrate proceeded correctly to impose a sentence of a fine upon the offender as the offence was not serious and there were no aggravating circumstances to call for a more severe penalty. However, she fell into error in imposing an excessive default term of imprisonment. Under section 28(2) of the Penal Code, the maximum default term for a fine of KShs 10,000/= is 3 months imprisonment. This error therefore must be corrected by this court to provide that in default of payment of the fine the offender shall serve a term of three months’ imprisonment.
8. This means that the offender has completed his default term of imprisonment and consequently, he should be set at liberty forthwith unless otherwise lawfully held.
9. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE