1. This matter is placed before me 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 trial court file has been placed before me and upon perusal I note that the offender was convicted and sentenced on two charges. The first charge was composite, comprising of the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. The household items stolen were worth KShs 115,000/= the property of Andrew Kibet Korir. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that otherwise in the course of stealing he dishonestly retained a TV make LG 43”, knowing or having reasons to believe it to be stolen goods.
3. He was sentenced to pay a fine of KShs 50,000/= in default to serve 3 years imprisonment on the principal charge of burglary and stealing. The learned magistrate did not sentence the offender on the second limb of stealing.
4. The offence of burglary is provided for under section 304 of the Penal Code as follows:
(1) Any person who—
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
5. The offence of stealing in a dwelling house which forms the second limb of the first charge is provided for under section 279(b) of the Penal Code that if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house the offender is liable to imprisonment for fourteen years.
6. The second charge was for being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) Laws of Kenya that on 2/6/2023 at around 0815 Hours at Ganja village in Msambweni location of Kwale County he was found in possession of five rolls of Cannabis in a black bag estimated at street value of KShs 1,400/= in contravention of the Act.
7. He was sentenced to a fine of KShs 30,000/= in default to serve one and a half-years imprisonment for possession of narcotic drugs.
8. The offence of possession of narcotic drugs is provided for under section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act with its punishment as follows:
S. 3(1) Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) shall be liable—
(a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings;
(b)…
9. Sub-section 3 deals with legal possession of narcotic drugs in circumstances such as under licence, by medical practitioners for use for medical purposes, an individual under prescription from a medical practitioner or a person authorized under the regulations under the Act.
10. I note that the default sentences imposed by the learned trial magistrate do not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya as the learned trial magistrate imposed default sentences beyond what is prescribed by the law. For the offence of burglary and stealing in a dwelling house, since the fine is KShs 50,000/= the maximum default term is 12 months imprisonment while for the charge of possession of narcotic drugs where he was sentenced to a fine of KShs 30,000/= the maximum default term is 6 months imprisonment as provided for under section 28(2) of the Penal Code. That is what the learned trial magistrate ought to have imposed.
11. The learned trial magistrate was also in error for failing to sentence on both limbs of the first charge of burglary and stealing from a dwelling house.
12. Consequently, the sentences imposed are set aside and substituted with a sentence of a fine of KShs 20,000/= in default to serve 6 months imprisonment on the first limb of burglary contrary to section 304(2) PC and a fine of KShs 30,000/= in default to serve 6 months imprisonment on the second limb of stealing in a dwelling house contrary to section 279(b) PC. For the charge of possession of narcotic drugs where he was sentenced to a fine of KShs 30,000/= the default term is substituted with 6 months imprisonment. The default sentences to run consecutively from the date of first arraignment for plea taking on 5/6/2023.
13. Consequently, the cumulative fines are KShs 80,000/=. In the event that the fines are not paid, the cumulative default term to be served is 18 months imprisonment.
14. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.
15. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
16. The sentence review report filed herein indicates that he is now suitable for a non-custodial sentence and recommends community service at Mwamzandi secondary school.
17. Given the seriousness of the offences against the offender and the severe penalties attendant thereto I find that the sentences of payment of fines are fair and are commensurate to the offences. The revision is successful to the extent that the default terms of imprisonment have been corrected and thereby reduced the term of imprisonment to be served.
18. Consequently, this file is closed.
19. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 25th day of February 2025
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
2. The trial court file has been placed before me and upon perusal I note that the offender was convicted and sentenced on two charges. The first charge was composite, comprising of the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya. The household items stolen were worth KShs 115,000/= the property of Andrew Kibet Korir. He was also charged in the alternative with handling stolen goods contrary to section 322(1) and (2) of the Penal Code that otherwise in the course of stealing he dishonestly retained a TV make LG 43”, knowing or having reasons to believe it to be stolen goods.
3. He was sentenced to pay a fine of KShs 50,000/= in default to serve 3 years imprisonment on the principal charge of burglary and stealing. The learned magistrate did not sentence the offender on the second limb of stealing.
4. The offence of burglary is provided for under section 304 of the Penal Code as follows:
(1) Any person who—
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
5. The offence of stealing in a dwelling house which forms the second limb of the first charge is provided for under section 279(b) of the Penal Code that if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house the offender is liable to imprisonment for fourteen years.
6. The second charge was for being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) Laws of Kenya that on 2/6/2023 at around 0815 Hours at Ganja village in Msambweni location of Kwale County he was found in possession of five rolls of Cannabis in a black bag estimated at street value of KShs 1,400/= in contravention of the Act.
7. He was sentenced to a fine of KShs 30,000/= in default to serve one and a half-years imprisonment for possession of narcotic drugs.
8. The offence of possession of narcotic drugs is provided for under section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act with its punishment as follows:
S. 3(1) Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) shall be liable—
(a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings;
(b)…
9. Sub-section 3 deals with legal possession of narcotic drugs in circumstances such as under licence, by medical practitioners for use for medical purposes, an individual under prescription from a medical practitioner or a person authorized under the regulations under the Act.
10. I note that the default sentences imposed by the learned trial magistrate do not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya as the learned trial magistrate imposed default sentences beyond what is prescribed by the law. For the offence of burglary and stealing in a dwelling house, since the fine is KShs 50,000/= the maximum default term is 12 months imprisonment while for the charge of possession of narcotic drugs where he was sentenced to a fine of KShs 30,000/= the maximum default term is 6 months imprisonment as provided for under section 28(2) of the Penal Code. That is what the learned trial magistrate ought to have imposed.
11. The learned trial magistrate was also in error for failing to sentence on both limbs of the first charge of burglary and stealing from a dwelling house.
12. Consequently, the sentences imposed are set aside and substituted with a sentence of a fine of KShs 20,000/= in default to serve 6 months imprisonment on the first limb of burglary contrary to section 304(2) PC and a fine of KShs 30,000/= in default to serve 6 months imprisonment on the second limb of stealing in a dwelling house contrary to section 279(b) PC. For the charge of possession of narcotic drugs where he was sentenced to a fine of KShs 30,000/= the default term is substituted with 6 months imprisonment. The default sentences to run consecutively from the date of first arraignment for plea taking on 5/6/2023.
13. Consequently, the cumulative fines are KShs 80,000/=. In the event that the fines are not paid, the cumulative default term to be served is 18 months imprisonment.
14. Before sentence the prosecution informed the court that they had no records of previous convictions for the offender. The offender asked to be considered for a non-custodial sentence.
15. The trial court called for a pre-sentence report which was not favourable for a non-custodial sentence.
16. The sentence review report filed herein indicates that he is now suitable for a non-custodial sentence and recommends community service at Mwamzandi secondary school.
17. Given the seriousness of the offences against the offender and the severe penalties attendant thereto I find that the sentences of payment of fines are fair and are commensurate to the offences. The revision is successful to the extent that the default terms of imprisonment have been corrected and thereby reduced the term of imprisonment to be served.
18. Consequently, this file is closed.
19. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 25th day of February 2025
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.