The Republic AND MWAVADU MWARANDU MAKANGA VS

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 convicted on two counts. The first was for the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code that on 6/7/2024 he unlawfully assaulted Uchi Makanga Chakaya thereby occasioning him actual bodily harm. He was sentenced to serve 3 years imprisonment. The second count was threatening to kill contrary to section 223(1) of the Penal Code that on the same day, place and time without lawful excuse he uttered threatening words to kill Uchi Makanga Chakaya that “nitakata kichwa chako na nikitupe huko mbegani watu wakwaangaikie kukitafuta.”
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. A summary of the facts recorded by the trial court at plea to which the offender pleaded guilty were that the complainant is the offender’s grand-mother. She went to her farm and noticed that part of her maize crop had been harvested. She went to question her grandson, the offender who turned upon her with a stick and beat her severally on the back as he issued threats.
3. Before sentencing, the prosecution informed the court that the offender had no records of previous convictions. In mitigation, the offender asked for forgiveness indicating that he was remorseful, he would not repeat and he had learnt his lesson the time he had been in remand custody.
4. The pre-sentence report called for and filed by the Probation and Aftercare department to assist the trial court it in meting out an appropriate sentence indicated that the offender was not suitable for a non-custodial sentence. It indicated that the offender was understood the magnitude of the offense, was remorseful, pleaded for lenience and had no reservations for a non-custodial sentence.
5. The local administration, the investigating officer and the victim were all against a non-custodial sentence as the offender was said to have been involved in previous similar incidents which seemed to be escalating. They thus feared for the victim’s safety.
6. The report attributes his deviant behavior to lack of appropriate parental guidance as he lost both parents.
7. The offence of assault causing actual bodily harm is a misdemeanor that attracts a maximum term of 5 years imprisonment while the offence of threatening to kill is a felony and attracts a term of ten years imprisonment. The offender was sentence to serve 18 months imprisonment on each count and the sentences to run concurrently.
8. The sentence review report filed in this court on 17/10/2024 by Nancy Muema, Probation Officer from the Probation and Aftercare Service Department as per this court’s directions dated 1/10/2024 requesting for the same is now positive that the offender now aged 24 years has reformed and is suitable for a non-custodial sentence.
9. The victim and the area administration are all ready to accept him back into the community indicating that they trust he has learnt his lesson in custody.
10. The offender still expresses remorse and he acknowledges 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 4 months.
11. The report recommends that the offender may be released on probation for a period of 3 months.
12. 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.
13. Considering the circumstances of the offence and the sentence review report, I find that this was a case deserving of a non-custodial sentence.
14. 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 placed on probation for 6 months at the Kwale Probation office. He is hereby released to the Kwale Probation and Aftercare department office to start probation.
15. Orders accordingly.

Ruling, Dated and Delivered at Mombasa this 5^th day of October, 2024.

ANDAYI W. F.

JUDGE

Ruling transmitted to prison authorities to be given effect immediately.