1. This matter comes before this court 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 offender Suleiman Omar was convicted and sentenced by the Magistrate’s Court at Kwale on 4/3/2024 on the principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya. He was also charged in the alternative with handling suspected stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code. A summary of the facts is that he stole a sumsung TV 55” valued at KShs 65,000/= the property of Diplomat hotel. The TV was later recovered with the offender.
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 18 months imprisonment.
4. 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. Before sentencing, the prosecution informed the trial court that this was a first offender.
8. In mitigation, the offender asked for lenience stating that he was a first offender, he had family and he was remorseful. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
9. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the offender for a non-custodial sentence. The community administrator did not have much information about him as he only visits his home area occasionally. The investigating officer described him as familiar and attributed his conduct to drug abuse and reasoned that a custodial sentence would be helpful to him.
10. The sentence review report filed in this court by Sammy Kigen, Probation Officer on 14/10/2024 following this court’s directions on decongestion indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service at Kombani police post.
11. The offender is aged 26 years, barely out of his childhood. He has been in custody for about 8 months including remand period. He has no previous record of offending before except for the reports by the police that he is a habitual offender without more information on the offences. His family is willing to assist him on rehabilitation indicating that they believe the time spent in custody is sufficient for him to have learnt a lesson. The offender has indicated his willingness to perform community service.
12. 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. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
13. In this case, the value of the property stolen is not high. The property was recovered and restored to the complainant and so she did not suffer loss but inconvenience.
14. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be. Given his young age, I find that the period served is sufficient for that purpose.
15. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Diani police station for a period of 3 months. He is accordingly released to the Kwale Probation and Aftercare department to start his non-custodial sentence.
16. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 4th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities to be given effect immediately.
2. The offender Suleiman Omar was convicted and sentenced by the Magistrate’s Court at Kwale on 4/3/2024 on the principal charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya. He was also charged in the alternative with handling suspected stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code. A summary of the facts is that he stole a sumsung TV 55” valued at KShs 65,000/= the property of Diplomat hotel. The TV was later recovered with the offender.
3. The offender pleaded guilty to the charge and was convicted and sentenced to serve 18 months imprisonment.
4. 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.”
5. 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.”
6. Following the Honourable the Chief Justices Directions on decongestion of prisons, this court called for and has perused the trial court file proceedings.
7. Before sentencing, the prosecution informed the trial court that this was a first offender.
8. In mitigation, the offender asked for lenience stating that he was a first offender, he had family and he was remorseful. The trial court then called for a pre-sentence report to assist it in passing an appropriate sentence.
9. The pre-sentence report filed by the Probation and Aftercare department was not favourable to the offender for a non-custodial sentence. The community administrator did not have much information about him as he only visits his home area occasionally. The investigating officer described him as familiar and attributed his conduct to drug abuse and reasoned that a custodial sentence would be helpful to him.
10. The sentence review report filed in this court by Sammy Kigen, Probation Officer on 14/10/2024 following this court’s directions on decongestion indicates that the offender is now suitable for a non-custodial sentence and recommends that he be committed for community service at Kombani police post.
11. The offender is aged 26 years, barely out of his childhood. He has been in custody for about 8 months including remand period. He has no previous record of offending before except for the reports by the police that he is a habitual offender without more information on the offences. His family is willing to assist him on rehabilitation indicating that they believe the time spent in custody is sufficient for him to have learnt a lesson. The offender has indicated his willingness to perform community service.
12. 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. Fair administration of justice, requires that a sentence be commensurate to the facts of the case.
13. In this case, the value of the property stolen is not high. The property was recovered and restored to the complainant and so she did not suffer loss but inconvenience.
14. I find that this is a case deserving of a sentence review to a non-custodial sentence. The offender has learned that breaking the law can attract dire consequences however minor the offence may be. Given his young age, I find that the period served is sufficient for that purpose.
15. The offender’s remainder term of imprisonment is reviewed to a non-custodial sentence to be served on community service at Diani police station for a period of 3 months. He is accordingly released to the Kwale Probation and Aftercare department to start his non-custodial sentence.
16. Orders accordingly.
Ruling, Dated and Delivered at Kwale this 4th day of November, 2024.
ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities to be given effect immediately.