'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E046 OF 2025
(Coram: Andayi W. F., J.)
WAMBUA KYALO JULIUS ……………………………………………..…………..…APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………….RESPONDENT
DECONGESTION
1. This matter is placed before this court for review of sentence. In my understanding the sentence review may be undertaken 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 in conjunction with 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. Article 50(2)(q) of the Constitution of Kenya:
“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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. 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.
S. 364(1)(b) 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 in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences, creating disturbances. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months. Further
6. The Lower Court file has been placed before me and I have perused the same and I find the following:
a. Conviction: Principal charge: House breaking contrary to Section 304(1) (a) of the Penal Code.
Particulars of offence: On the 20th April 2025 at around 0940 hours at Maendeleo village in Lungalunga Location of Lungalunga Sub-County within Kwale County, jointly with another not before court broke and entered the building used as dwelling house by Miriam Joel Mailu with intent to commit a felony therein namely stealing.
b. Count II: Stealing in a dwelling house contrary to Section 279(b) of the Penal Code.
Particulars of Offence: On the 20th April 2025 at around 0940 hours at Maendeleo village in Lungalunga Location of Lungalunga Sub-County within Kwale County, jointly with another not before court stole one blue coloured mattress, one sunking lamp enjoined with solar, one checked blanket, assorted clothings and one red bag all valued at Kshs. 33,000/= the properties of Miriam Joel Mailu from the dwelling house of the said Miriam Joel Mailu.
c. Alternative Charge: Handling stolen property contrary to Section 322(1)(2) of the Penal Code.
Particulars of Alternative Charge: On the diverse dates between 20th April 2025 and 29th April 2025 at Maendeleo Village in Lungalunga Location of Lungalunga Sub County within Kwale County, otherwise than in the course of stealing, dishonestly undertook the retention of a blue coloured mattress, one sunking lamp enjoined with solar, one checked blanket, assorted clothings and one red bag for the benefit of Mwendwa Kyalo Julius knowing or having reason to believe them to be stolen goods.
d. Plea: Guilty.
i. Sentence:
i. Count I: 6 months’ imprisonment,
ii. Count II: 1-year imprisonment.
Sentences to run concurrently.
j. Criminal Record: Not given by prosecution.
k. Pre-sentence report - Not favourable for a non-custodial sentence because he does not have a fixed aboard or a support system because his parents are not around and they do not know about his welfare.
7. Sentence review report – Favourable for a sentence review.
8. Recommendation – Recommended for a non-custodial sentence namely probation order for a period of 8 months.
9. Court: Sentence review granted.
10. Order: Sentence reviewed. Offender to be placed on probation for 8 months for the remainder of his prison term
11. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E046 OF 2025
(Coram: Andayi W. F., J.)
WAMBUA KYALO JULIUS ……………………………………………..…………..…APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………….RESPONDENT
DECONGESTION
1. This matter is placed before this court for review of sentence. In my understanding the sentence review may be undertaken 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 in conjunction with 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. Article 50(2)(q) of the Constitution of Kenya:
“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.”
3. Article 165(6) and (7) constitution provides for the High Court supervisory jurisdiction over subordinate courts:
“(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.”
4. Sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provide as follows:
S. 362. 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.
S. 364(1)(b) 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 in the case of any other order other than an order of acquittal, alter or reverse the order.
5. Fair administration of justice with regard to sentencing would entail among others, ensuring that sentences are proportionate to the crimes committed, so that, for instance, offenders are not committed to imprisonment terms for minor property offences, non-serious bodily injury assaults and the like offences, creating disturbances. It is in that spirit that Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months. Further
6. The Lower Court file has been placed before me and I have perused the same and I find the following:
a. Conviction: Principal charge: House breaking contrary to Section 304(1) (a) of the Penal Code.
Particulars of offence: On the 20th April 2025 at around 0940 hours at Maendeleo village in Lungalunga Location of Lungalunga Sub-County within Kwale County, jointly with another not before court broke and entered the building used as dwelling house by Miriam Joel Mailu with intent to commit a felony therein namely stealing.
b. Count II: Stealing in a dwelling house contrary to Section 279(b) of the Penal Code.
Particulars of Offence: On the 20th April 2025 at around 0940 hours at Maendeleo village in Lungalunga Location of Lungalunga Sub-County within Kwale County, jointly with another not before court stole one blue coloured mattress, one sunking lamp enjoined with solar, one checked blanket, assorted clothings and one red bag all valued at Kshs. 33,000/= the properties of Miriam Joel Mailu from the dwelling house of the said Miriam Joel Mailu.
c. Alternative Charge: Handling stolen property contrary to Section 322(1)(2) of the Penal Code.
Particulars of Alternative Charge: On the diverse dates between 20th April 2025 and 29th April 2025 at Maendeleo Village in Lungalunga Location of Lungalunga Sub County within Kwale County, otherwise than in the course of stealing, dishonestly undertook the retention of a blue coloured mattress, one sunking lamp enjoined with solar, one checked blanket, assorted clothings and one red bag for the benefit of Mwendwa Kyalo Julius knowing or having reason to believe them to be stolen goods.
d. Plea: Guilty.
i. Sentence:
i. Count I: 6 months’ imprisonment,
ii. Count II: 1-year imprisonment.
Sentences to run concurrently.
j. Criminal Record: Not given by prosecution.
k. Pre-sentence report - Not favourable for a non-custodial sentence because he does not have a fixed aboard or a support system because his parents are not around and they do not know about his welfare.
7. Sentence review report – Favourable for a sentence review.
8. Recommendation – Recommended for a non-custodial sentence namely probation order for a period of 8 months.
9. Court: Sentence review granted.
10. Order: Sentence reviewed. Offender to be placed on probation for 8 months for the remainder of his prison term
11. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 21st day of October 2025
HON. ANDAYI W. F.
JUDGE
'