REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E013 OF 2025
(Coram: Andayi W. F., J.)
MICHAEL JOSEPH WAIRIMU.…………………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence under Article 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 was charged with two counts on a composite charge of house breaking contrary to section 304(1)(b) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya.
4. The particulars were that on diverse dates between August and November 2024 at Majengo Mwamose village in Lunga Lunga Sub-County within Kwale County broke and entered the dwelling house of Kalu Chiti Kalu with intent to steal and did steal a woofer, KPLC meter. spirit level, kambatine, kabiro, tape measure, trowel, axe and cable all valued at KShs 15,000/= the property of Kalu Chiti Kalu.
5. It is recorded that he pleaded guilty to the first count where he was convicted and sentenced to ten months imprisonment to run from 3/12/2024.
6. He pleaded not guilty to the second count and the matter is pending trial.
7. A summary of the facts narrated by the prosecution at plea were that offender entered the complainant’s house between August and November 2024 and stole the various items listed. He was found in possession of the sub-woofer and speakers, a remote control, KPLC meter and extension cable
8. The offender pleaded guilty to the charge. He was sentenced to serve ten-months imprisonment.
9. In mitigation, the offender said he wanted the complainant to be available so that he could seek his forgiveness. The prosecution indicated that he was a first offender.
10. 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.
11. The sentence review report filed herein on 24/4/2025 by the Probation and Aftercare department indicates that the offender is still remorseful. He has undergone rehabilitation through learning of life skills and counselling and has been of good conduct. He prays for a non-custodial sentence.
12. His family and community report that they are ready to receive him back into the family. He is thus recommended for a non-custodial sentence of community service.
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. 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.”
16. The punishment for the offence of housebreaking contrary to section 304(1) of the Penal Code is 7 years imprisonment while that of stealing from a dwelling house contrary to section 279(b) of the Penal Code where the value of the stolen property exceeds KShs 100/= is 14 years imprisonment. The offender was sentenced to serve ten-months imprisonment on each limb of the offence and the terms to run concurrently.
17. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the sentence. However, since the offences carry maximum terms of 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.
18. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines, 2023 which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
19. 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”.
20. 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.
21. Considering the circumstances of the offence and the sentence review report, the age of the offender at 22 years old and the fact that a good number of the stolen goods were recovered, I find that this is a case deserving of a sentence review.
22. 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 on count 1 is reviewed to provide that he is sentenced to serve the term so far served.
23. Since he is on trial on the second count, the trial court may consider appropriate bond/bail terms for his release from custody.
24. It is so ordered.
25. 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. E013 OF 2025
(Coram: Andayi W. F., J.)
MICHAEL JOSEPH WAIRIMU.…………………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence under Article 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 was charged with two counts on a composite charge of house breaking contrary to section 304(1)(b) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya.
4. The particulars were that on diverse dates between August and November 2024 at Majengo Mwamose village in Lunga Lunga Sub-County within Kwale County broke and entered the dwelling house of Kalu Chiti Kalu with intent to steal and did steal a woofer, KPLC meter. spirit level, kambatine, kabiro, tape measure, trowel, axe and cable all valued at KShs 15,000/= the property of Kalu Chiti Kalu.
5. It is recorded that he pleaded guilty to the first count where he was convicted and sentenced to ten months imprisonment to run from 3/12/2024.
6. He pleaded not guilty to the second count and the matter is pending trial.
7. A summary of the facts narrated by the prosecution at plea were that offender entered the complainant’s house between August and November 2024 and stole the various items listed. He was found in possession of the sub-woofer and speakers, a remote control, KPLC meter and extension cable
8. The offender pleaded guilty to the charge. He was sentenced to serve ten-months imprisonment.
9. In mitigation, the offender said he wanted the complainant to be available so that he could seek his forgiveness. The prosecution indicated that he was a first offender.
10. 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.
11. The sentence review report filed herein on 24/4/2025 by the Probation and Aftercare department indicates that the offender is still remorseful. He has undergone rehabilitation through learning of life skills and counselling and has been of good conduct. He prays for a non-custodial sentence.
12. His family and community report that they are ready to receive him back into the family. He is thus recommended for a non-custodial sentence of community service.
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. 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.”
16. The punishment for the offence of housebreaking contrary to section 304(1) of the Penal Code is 7 years imprisonment while that of stealing from a dwelling house contrary to section 279(b) of the Penal Code where the value of the stolen property exceeds KShs 100/= is 14 years imprisonment. The offender was sentenced to serve ten-months imprisonment on each limb of the offence and the terms to run concurrently.
17. The learned trial magistrate therefore proceeded correctly in accordance with the law in imposing the sentence. However, since the offences carry maximum terms of 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.
18. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines, 2023 which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
19. 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”.
20. 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.
21. Considering the circumstances of the offence and the sentence review report, the age of the offender at 22 years old and the fact that a good number of the stolen goods were recovered, I find that this is a case deserving of a sentence review.
22. 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 on count 1 is reviewed to provide that he is sentenced to serve the term so far served.
23. Since he is on trial on the second count, the trial court may consider appropriate bond/bail terms for his release from custody.
24. It is so ordered.
25. 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