1. This matter is placed before this court 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 offender was convicted and sentenced by the Magistrate’s Court at Msambweni on his own plea of guilty on 5/2/2024 on a charge of house breaking and stealing contrary to section 306(a) as read with section 306(b) of the Penal Code (Cap. 63) Laws of Kenya that he broke and entered the house of Mwendwa Mwaniki and committed therein a felony namely stealing and tole from therein 106kg of maize six trousers, 3 T-shirts, one kikoi lesso all valued at KShs 7,500/= the property of Mwenwa Mwaniki. The items were not recovered. He was sentenced to serve 2 years imprisonment to run from date of arrest on 9/10/2023.
3. 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.”
4. 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.”
5. The supervisory jurisdiction is expounded under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya as follows:
362. Power of High Court to call for records
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
364. Powers of High Court on revision
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) …
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
6. On the foregoing provisions of the law, this court, upon calling for and considering the proceedings before the Magistrataes Court can review and alter the sentence to a lesser one if satisfied that it is in the interest of justice to do so.
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. It is noted that before sentencing, the prosecution informed the trial court that the accused person had no record, I presume of previous conviction.
9. In mitigation, the offender asked for mercy and forgiveness. He said that he was led to commit the offence due to hunger. He was fending for his children who had no food.
10. The trial court called for a pre-sentence report before passing the sentence. The report, filed by the Probation and Aftercare department was not favourable for a non-custodial sentence. The community described him as a known thief who had been involved in many incidents of theft. He had escaped violence from members of the public due to his wayward behavior, His security was thus not guaranteed in case he left custody. The victim said she had approached the offender’s family for an amicable settlement of the matter but they urged him to report the case to the police. He repeated the community’s sentiment’s that the offender was a known thief in the area and deserved a custodial sentence.
11. The offender did not provide his family contacts and they were therefore not reached.
12. The offender was sentenced to serve 2 years imprisonment. He has so far served 9 months in prison.
13. The sentence review report filed in this court by Omar Kenga Nzai, Probation Officer on 17/10/2024 following this court’s request for the same indicates that the offender is still unsuitable for a non-custodial sentence as the community was still hostile towards his reception.
14. The offender is aged 34 years. He has been in custody for about 9 months of his prison term including remand period.
15. 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 while section 364(1)(b) donates authority to this court to alter an order made by a magistrate’s court. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
16. In this case, property stolen is of low value, only KShs 7,500. However, it involved a serious offence of house breaking. The offender has a poor record within his community who are baying for him. He has not yet earned trust of his community to enable hi serve a non-custodial sentence among them. Although he has served almost, if not more than half of his term, if remission as provided for under section 46 of the Prisons Act (Cap. 84) Laws of Kenya, is factored in, I do not find to benefit from a non-custodial sentence even as I am aware that eventually, and within a short time to come, he will be out and the community will have to bear with his mannerisms.
17. Punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system. It will be a wrong message to send to the community that such a person can easily walk out of his punishment without any tangible evidence of what he has undergone to reform him by mere indication that he is remorseful.
18. I find that this is a case not deserving of a sentence review to a non-custodial sentence. The offender requires to complete his term of imprisonment for his own safety and well-being, and for him to reflect fully on his conduct and relations with the community and to appreciate that breaking the law can attract dire consequences however minor the offence may be.
19. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 7th 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 5/2/2024 on a charge of house breaking and stealing contrary to section 306(a) as read with section 306(b) of the Penal Code (Cap. 63) Laws of Kenya that he broke and entered the house of Mwendwa Mwaniki and committed therein a felony namely stealing and tole from therein 106kg of maize six trousers, 3 T-shirts, one kikoi lesso all valued at KShs 7,500/= the property of Mwenwa Mwaniki. The items were not recovered. He was sentenced to serve 2 years imprisonment to run from date of arrest on 9/10/2023.
3. 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.”
4. 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.”
5. The supervisory jurisdiction is expounded under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya as follows:
362. Power of High Court to call for records
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
364. Powers of High Court on revision
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) …
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
6. On the foregoing provisions of the law, this court, upon calling for and considering the proceedings before the Magistrataes Court can review and alter the sentence to a lesser one if satisfied that it is in the interest of justice to do so.
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. It is noted that before sentencing, the prosecution informed the trial court that the accused person had no record, I presume of previous conviction.
9. In mitigation, the offender asked for mercy and forgiveness. He said that he was led to commit the offence due to hunger. He was fending for his children who had no food.
10. The trial court called for a pre-sentence report before passing the sentence. The report, filed by the Probation and Aftercare department was not favourable for a non-custodial sentence. The community described him as a known thief who had been involved in many incidents of theft. He had escaped violence from members of the public due to his wayward behavior, His security was thus not guaranteed in case he left custody. The victim said she had approached the offender’s family for an amicable settlement of the matter but they urged him to report the case to the police. He repeated the community’s sentiment’s that the offender was a known thief in the area and deserved a custodial sentence.
11. The offender did not provide his family contacts and they were therefore not reached.
12. The offender was sentenced to serve 2 years imprisonment. He has so far served 9 months in prison.
13. The sentence review report filed in this court by Omar Kenga Nzai, Probation Officer on 17/10/2024 following this court’s request for the same indicates that the offender is still unsuitable for a non-custodial sentence as the community was still hostile towards his reception.
14. The offender is aged 34 years. He has been in custody for about 9 months of his prison term including remand period.
15. 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 while section 364(1)(b) donates authority to this court to alter an order made by a magistrate’s court. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
16. In this case, property stolen is of low value, only KShs 7,500. However, it involved a serious offence of house breaking. The offender has a poor record within his community who are baying for him. He has not yet earned trust of his community to enable hi serve a non-custodial sentence among them. Although he has served almost, if not more than half of his term, if remission as provided for under section 46 of the Prisons Act (Cap. 84) Laws of Kenya, is factored in, I do not find to benefit from a non-custodial sentence even as I am aware that eventually, and within a short time to come, he will be out and the community will have to bear with his mannerisms.
17. Punishment also aims to educate the greater community and would-be offenders about the consequences of their actions through the criminal justice system. It will be a wrong message to send to the community that such a person can easily walk out of his punishment without any tangible evidence of what he has undergone to reform him by mere indication that he is remorseful.
18. I find that this is a case not deserving of a sentence review to a non-custodial sentence. The offender requires to complete his term of imprisonment for his own safety and well-being, and for him to reflect fully on his conduct and relations with the community and to appreciate that breaking the law can attract dire consequences however minor the offence may be.
19. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 7th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.