REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E011 OF 2025
(Coram: Andayi W. F., J.)
MESHACK MWENDWA MUOKI……………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
RULING
1. This matter is placed before me for review of sentence 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 me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on two counts. The first count was assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 30/12/2024 at around 2000 Hours at Gandini village in Kinondo location of Kwale County within Coast region, he assaulted Damaris Mwende Mwanzi thereby occasioning her actual bodily harm.
4. He was sentenced to pay a fine of KShs 25,000/= in default to serve 3 months imprisonment.
5. The second count was malicious damage to property contrary to section 339(1) of the Penal Code that on the same day, place and time, he willfully and unlawfully damaged a mobile phone make Samsung Galaxy A04e valued at KShs 17,000/= the property of Damaris Mwende Mwanzi.
6. He was sentenced to pay a fine of KShs 25,000/= in default to serve 3 months imprisonment.
7. The brief facts of the case were that the complainant is the offender’s wife. On the material day, the offender arrived home in the evening and picked a quarrel with the complainant, accusing her of infidelity. In the process he took her phone, smashed it on the ground, picked it again and shred it into pieces. The complainant left with their children to report the incident at Msambweni police station. The offender pursued her and assaulted her more, strangling her. The complainant screamed for help and the offender took off. The offender reported the matter to the police and went for medical attention. Offender was subsequently arrested and charged.
8. The offence of assault causing actual bodily harm is provided for under section 251 of the Penal Code as follows:
“S. 251. Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
9. The offence of malicious damage to property as charged is provided for under section 339(1) of the Penal Code as follows:
“S. 339(1). Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.”
10. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender asked forgiveness and conceded that he was on the wrong even as he raised his own issues that caused the differences with the complainant. He felt the complainant was undermining him. He was however prepared to replace the broken phone by purchasing another one by installments.
11. The trial court called for a pre-sentence report which was favourable for a non-custodial sentence and recommended that the offender be placed on probation. The report indicated that the offender was remorseful and he had appreciated the gravity of his offence. He had reconciled with his wife and he had started working on replacing the damaged phone by paying for another one by installments. The complainant was agreeable to him being granted a non-custodial sentence, indicating that she did not find him to be a security threat to her. The offender’s father and community also spoke well of him.
12. The sentence review report filed herein indicates that the offender has developed better social skills like team work with the inmates. He was leading others in religious functions and had understood the importance of living well with others.
13. The manner the offence was committed is reminiscent of domestic gender-based violence where a spouse wants to be overbearing over the other. Even then, the offender has showed right from the beginning that he truly regrets his actions. He is inclined towards reconciliation and promises to take his family upcountry in Machakos where he was borne to settle there and engage in farming for their upkeep.
14. Under those circumstances, I find that the offender is a suitable candidate for sentence review. The fact that he has not paid the fine means that he and his family are unable to raise it. Consequently, his sentence is reviewed on both counts to provide that in each case the default term of imprisonment shall be equivalent to half of the term already served. He is therefore hereby ordered released from custody forthwith unless otherwise lawfully held.
15. This file is closed.
16. 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. E011 OF 2025
(Coram: Andayi W. F., J.)
MESHACK MWENDWA MUOKI……………………….APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
RULING
1. This matter is placed before me for review of sentence 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 me and I have perused the same.
3. The offender pleaded guilty and was convicted and sentenced on two counts. The first count was assault causing actual bodily harm contrary to section 251 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on 30/12/2024 at around 2000 Hours at Gandini village in Kinondo location of Kwale County within Coast region, he assaulted Damaris Mwende Mwanzi thereby occasioning her actual bodily harm.
4. He was sentenced to pay a fine of KShs 25,000/= in default to serve 3 months imprisonment.
5. The second count was malicious damage to property contrary to section 339(1) of the Penal Code that on the same day, place and time, he willfully and unlawfully damaged a mobile phone make Samsung Galaxy A04e valued at KShs 17,000/= the property of Damaris Mwende Mwanzi.
6. He was sentenced to pay a fine of KShs 25,000/= in default to serve 3 months imprisonment.
7. The brief facts of the case were that the complainant is the offender’s wife. On the material day, the offender arrived home in the evening and picked a quarrel with the complainant, accusing her of infidelity. In the process he took her phone, smashed it on the ground, picked it again and shred it into pieces. The complainant left with their children to report the incident at Msambweni police station. The offender pursued her and assaulted her more, strangling her. The complainant screamed for help and the offender took off. The offender reported the matter to the police and went for medical attention. Offender was subsequently arrested and charged.
8. The offence of assault causing actual bodily harm is provided for under section 251 of the Penal Code as follows:
“S. 251. Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
9. The offence of malicious damage to property as charged is provided for under section 339(1) of the Penal Code as follows:
“S. 339(1). Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.”
10. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender asked forgiveness and conceded that he was on the wrong even as he raised his own issues that caused the differences with the complainant. He felt the complainant was undermining him. He was however prepared to replace the broken phone by purchasing another one by installments.
11. The trial court called for a pre-sentence report which was favourable for a non-custodial sentence and recommended that the offender be placed on probation. The report indicated that the offender was remorseful and he had appreciated the gravity of his offence. He had reconciled with his wife and he had started working on replacing the damaged phone by paying for another one by installments. The complainant was agreeable to him being granted a non-custodial sentence, indicating that she did not find him to be a security threat to her. The offender’s father and community also spoke well of him.
12. The sentence review report filed herein indicates that the offender has developed better social skills like team work with the inmates. He was leading others in religious functions and had understood the importance of living well with others.
13. The manner the offence was committed is reminiscent of domestic gender-based violence where a spouse wants to be overbearing over the other. Even then, the offender has showed right from the beginning that he truly regrets his actions. He is inclined towards reconciliation and promises to take his family upcountry in Machakos where he was borne to settle there and engage in farming for their upkeep.
14. Under those circumstances, I find that the offender is a suitable candidate for sentence review. The fact that he has not paid the fine means that he and his family are unable to raise it. Consequently, his sentence is reviewed on both counts to provide that in each case the default term of imprisonment shall be equivalent to half of the term already served. He is therefore hereby ordered released from custody forthwith unless otherwise lawfully held.
15. This file is closed.
16. 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