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JudgmentThe Republic AND MATANO SALIM MRINA VS4 min read

The Republic AND MATANO SALIM MRINA VS

High Court at Kwale High Court · · Andayi W.F.

  1. This matter is placed before me 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 applicant was charged with the offence of grievous harm contrary to section 234 of the Penal Code (Cap. 63) Laws of Kenya that on 21/9/2022 at around 1300 Hours at Bumani village, Ndavaya location in Kinangoa Sub-County within Kwale County he unlawfully did grievous harm t Kassim Nyondo Nyae. He was tried of the offence but convicted of the lesser offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. He was sentenced to serve 3 years imprisonment.
  3. 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.”

  1. On the other hand, 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.

  1. I have perused the trial court file proceedings forwarded to this court.
  2. According to the evidence recorded by the trial court the offender waylaid the complaint on the way and slashed him three times on the head twice and once on his right-hand shoulder. Apparently the two has some prior differences with the offender on alleging that the complainant was sleeping around with the offender’s wife, for which the complainant was reported to the local area chief and fined but he was undeterred and he went on with the relationship resulting in this incident.
  3. Before sentencing, the prosecution informed the court that the offender was a first offender. In mitigation, the offender asked the court to consider the time he had spent in custody, that he was a family man and that he be given a non-custodial sentence.
  4. The applicant was then sentenced as indicated above.
  5. I note that the trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence.
  6. I have considered the sentence review report filed in this court on 14/10/2024 by Sammy Kigen, Probation Officer from the Probation and Aftercare Service Department as per this court’s directions dated 1/10/2024 requesting for the same.
  7. The sentence review report filed herein indicates that the offender aged 32 years. He is remorseful and he has acknowledged his wrongs and regrets committing the offence and prays for forgiveness. He promises to abide by the law. He has been in custody for about one year and ten months.
  8. There is no indication that the complainant was sought to give his views on the release of the offender. That was a great omission that the Probation Officer should check in future. The views of a victim of an offence on the sentence to be meted out to the offender are crucial before sentencing and even upon review of sentence as in the present case.
  9. The report recommends that the applicant is suitable for a non-custodial sentence and recommends that he may be released to serve community service for 3 months at Assistant chief’s office, Kinango Sub-County.
  10. Section 3 of the Community Service Orders Act provides that:

“Where any person is convicted of an offence punishable with—

  1. imprisonment for a term not exceeding three years, with or without the option of a fine; or
  2. 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.

  1. Fair administration of justice as provided for under Article 50(2)(q) under which this review is proceeding requires that a sentence be commensurate to the facts of the case.
  2. Considering the circumstances of the offence and the sentence review report, I find that this was a case deserving of a non-custodial sentence.
  3. Consequently, I consider the custodial sentence so far served to be sufficient for the offender’s reformation. His sentence is reviewed to provide that he shall serve imprisonment for the term so far spent in prison and in addition the offender be and is hereby committed to serve community service for 6 months at the assistant chief’s office Ndavaya within Kinango Sub-County of Kwale County. He is hereby released to the Kwale Probation and Aftercare department office to start his community service.
  4. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 4th day of October, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.


    The Republic AND MATANO SALIM MRINA VS The Republic AND MATANO SALIM MRINA VS