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 Msambweni on his own plea of guilty on 26/2/2024 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 that he together with others broke and entered Franz Josef Secondary school and stole assorted items of unknown value and one submersible water pump valued at KShs 18,000/=. The items were not recovered.
3. 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 that otherwise than in the course of stealing he dishonestly retained one submersible water pump knowing or having reason to believe it to be stolen.
4. The offender pleaded guilty to the charge and was convicted and sentenced to serve 18 months imprisonment.
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. In mitigation, the offender asked for lenience stating that he was a first offender and he was remorseful.
9. The trial court did not call for a pre-sentence report before passing the sentence. Although not mandatory, such a report is desirable in order to inform the court of the personal circumstances of the offender, the victim of the offence and the community in which the offender resides and the offence was committed. It will then assist the court in passing an appropriate sentence. The report becomes even more imperative where under Article 50(2)(q) of the Constitution and section 364(1)(b) a higher court may have to consider the case for review of the sentence such as in the present case.
10. The sentence review report filed in this court by Scholar Chepkurui, Probation Officer on 17/10/2024 following this court’s directions on decongestion indicates that the offender is suitable for a non-custodial sentence and recommends that he be committed to community service at Lunga Lunga Sub-County hospital.
11. The offender is aged 19 years, barely out of his childhood. He has been in custody for about 10 months including remand period. He has no previous record of offending. 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.
12. 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.
13. In this case, the value of the property stolen is not high. The property was recovered and restored to the complainant and so they did not suffer loss but inconvenience.
14. 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.
15. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence of probation for a period of 6 months. He is accordingly released to the Msambweni Probation and Aftercare department office to start his probation.
16. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 8th 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 Msambweni on his own plea of guilty on 26/2/2024 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 that he together with others broke and entered Franz Josef Secondary school and stole assorted items of unknown value and one submersible water pump valued at KShs 18,000/=. The items were not recovered.
3. 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 that otherwise than in the course of stealing he dishonestly retained one submersible water pump knowing or having reason to believe it to be stolen.
4. The offender pleaded guilty to the charge and was convicted and sentenced to serve 18 months imprisonment.
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. In mitigation, the offender asked for lenience stating that he was a first offender and he was remorseful.
9. The trial court did not call for a pre-sentence report before passing the sentence. Although not mandatory, such a report is desirable in order to inform the court of the personal circumstances of the offender, the victim of the offence and the community in which the offender resides and the offence was committed. It will then assist the court in passing an appropriate sentence. The report becomes even more imperative where under Article 50(2)(q) of the Constitution and section 364(1)(b) a higher court may have to consider the case for review of the sentence such as in the present case.
10. The sentence review report filed in this court by Scholar Chepkurui, Probation Officer on 17/10/2024 following this court’s directions on decongestion indicates that the offender is suitable for a non-custodial sentence and recommends that he be committed to community service at Lunga Lunga Sub-County hospital.
11. The offender is aged 19 years, barely out of his childhood. He has been in custody for about 10 months including remand period. He has no previous record of offending. 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.
12. 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.
13. In this case, the value of the property stolen is not high. The property was recovered and restored to the complainant and so they did not suffer loss but inconvenience.
14. 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.
15. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence of probation for a period of 6 months. He is accordingly released to the Msambweni Probation and Aftercare department office to start his probation.
16. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 8th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.