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 Kwale on his own plea of guilty on 30/4/2024 after a plea bargain with the prosecution where the prosecution offered that he be sentenced to 3 years imprisonment on a charge of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya that he broke and entered the building used as a dwelling house by Omar Hussein and stole 5 iron sheets, 4 water jerricans, a radio, wooden TV table valued at KShs 20,000/= the property of Omar Hussein. The items were not recovered. He was sentenced to serve 2 years imprisonment to run from 2/1/2024 the date of his arraignment. It appears that the learned magistrate only sentenced the offender on one of the limbs and forgot the second limb of the offence charged.
3. This charge consists of two limbs each under a separate section of the Penal Code. A sentence should therefore be pronounced on each limb and ordered to run concurrently. The learned trial magistrate erred in this case for failure to do so. I however note that the appellant was not prejudiced.
4. 9. The offence of house breaking has a maximum penalty of seven years imprisonment and that of stealing under section 279 (b) of the Penal Code has a maximum of fourteen years imprisonment. The offender was sentenced to serve two years imprisonment. By any standards that was quite lenient.
5. 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.”
6. 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.”
7. 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) …
8. On the foregoing provisions of the law, this court, upon calling for and considering the proceedings before the Magistrates Court can review and alter a sentence to a lesser one if satisfied that it is in the interest of justice to do so.
9. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
10. It is noted that before sentencing, the prosecution informed the trial court that the accused person had no previous records of convictions.
11. In mitigation, the offender asked for lenience. He said that he was willing to refund the money and asked for a non-custodial sentence to enable him raise it.
12. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence, even as a plea-bargain had been negotiated. Even as the same is not a requirement of law, the Judiciary Sentencing Policy Guidelines 2023 at paragraph 4.7.7 note that courts routinely request for pre-sentence reports as a guide for the award of both custodial and non-custodial sentences. I believe this is a good practice that should be adopted at all times as the circumstances of the case permit. Such reports are helpful for instance to help the trial court with information concerning the accused person’s and the victim’s present vulnerability of note that is applicable to them directly or connected third parties. The reports also help in cases of sentence review such as the present one for the higher court to appreciate why the offender was given a custodial sentence in the first place.
13. The offender was sentenced to serve 2 years imprisonment. He has so far served about 10 months and one week in prison.
14. The sentence review report filed in this court by Salim Ali Mazang’ang’a Probation Officer on 15/10/2024 following this court’s request for the same indicates that the offender is now suitable for a non-custodial sentence of probation.
15. The offender is aged 23 years. He has no previous record of offending. The report indicates that he has thoroughly reflected upon his offending behavior and he has acknowledged and taken accountability of his behaviour.
16. 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.
17. In this case, there were no serious aggravating circumstances in the commission of the offence. I find that this is a case deserving of a sentence review to a non-custodial sentence. I believe that for the period spent in custody, the offender has learned that breaking the law can attract dire consequences. I find that the period served is sufficient for that purpose.
18. Consequently, the offender’s remainder term of imprisonment is reviewed to a non-custodial sentence. He is hereby placed on probation for a period of 6 months. He is accordingly released to the Kwale Probation and Aftercare department to start his probation.
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 Kwale on his own plea of guilty on 30/4/2024 after a plea bargain with the prosecution where the prosecution offered that he be sentenced to 3 years imprisonment on a charge of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code (Cap. 63) Laws of Kenya that he broke and entered the building used as a dwelling house by Omar Hussein and stole 5 iron sheets, 4 water jerricans, a radio, wooden TV table valued at KShs 20,000/= the property of Omar Hussein. The items were not recovered. He was sentenced to serve 2 years imprisonment to run from 2/1/2024 the date of his arraignment. It appears that the learned magistrate only sentenced the offender on one of the limbs and forgot the second limb of the offence charged.
3. This charge consists of two limbs each under a separate section of the Penal Code. A sentence should therefore be pronounced on each limb and ordered to run concurrently. The learned trial magistrate erred in this case for failure to do so. I however note that the appellant was not prejudiced.
4. 9. The offence of house breaking has a maximum penalty of seven years imprisonment and that of stealing under section 279 (b) of the Penal Code has a maximum of fourteen years imprisonment. The offender was sentenced to serve two years imprisonment. By any standards that was quite lenient.
5. 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.”
6. 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.”
7. 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) …
8. On the foregoing provisions of the law, this court, upon calling for and considering the proceedings before the Magistrates Court can review and alter a sentence to a lesser one if satisfied that it is in the interest of justice to do so.
9. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
10. It is noted that before sentencing, the prosecution informed the trial court that the accused person had no previous records of convictions.
11. In mitigation, the offender asked for lenience. He said that he was willing to refund the money and asked for a non-custodial sentence to enable him raise it.
12. The trial court did not call for a pre-sentence report to assist it in passing an appropriate sentence, even as a plea-bargain had been negotiated. Even as the same is not a requirement of law, the Judiciary Sentencing Policy Guidelines 2023 at paragraph 4.7.7 note that courts routinely request for pre-sentence reports as a guide for the award of both custodial and non-custodial sentences. I believe this is a good practice that should be adopted at all times as the circumstances of the case permit. Such reports are helpful for instance to help the trial court with information concerning the accused person’s and the victim’s present vulnerability of note that is applicable to them directly or connected third parties. The reports also help in cases of sentence review such as the present one for the higher court to appreciate why the offender was given a custodial sentence in the first place.
13. The offender was sentenced to serve 2 years imprisonment. He has so far served about 10 months and one week in prison.
14. The sentence review report filed in this court by Salim Ali Mazang’ang’a Probation Officer on 15/10/2024 following this court’s request for the same indicates that the offender is now suitable for a non-custodial sentence of probation.
15. The offender is aged 23 years. He has no previous record of offending. The report indicates that he has thoroughly reflected upon his offending behavior and he has acknowledged and taken accountability of his behaviour.
16. 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.
17. In this case, there were no serious aggravating circumstances in the commission of the offence. I find that this is a case deserving of a sentence review to a non-custodial sentence. I believe that for the period spent in custody, the offender has learned that breaking the law can attract dire consequences. I find that the period served is sufficient for that purpose.
18. Consequently, the offender’s remainder term of imprisonment is reviewed to a non-custodial sentence. He is hereby placed on probation for a period of 6 months. He is accordingly released to the Kwale Probation and Aftercare department to start his probation.
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.