Swalehe v Republic (Criminal Revision E053 of 2025) [2025] KEHC 19430 (KLR) (14 November 2025) (Ruling) Neutral citation: [2025] KEHC 19430 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KWALE CRIMINAL REVISION E053 OF 2025 F ANDAYI, J NOVEMBER 14, 2025 BETWEEN ABDALLA ALI SWALEHE ...................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19430/eng@2025-11-14 1
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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. In the case of a proceeding in a subordinate court the record of which has been called for or 364(1) which has been reported for orders, or which otherwise comes to its knowledge, the High (b) Court may in the case of any other order other than an order of acquittal, alter or reverse the order. 5. Therefore, upon the Lower Court file being placed before this court for review of a custodial sentence it is required to satisfy itself of the propriety of the sentence passed to ensure that it is in conformity with the constitutional provisions and whether a probation order under the Probation of Offenders Act or a community service order under the Community Service Orders Act would be more appropriate and beneficial to the offender and the community at large, taking into account the views of the victim of the offence as well as the need to keep prisons decongested of inmates who may not benefit much from short custodial terms or who have sufficiently served a portion of their custodial term thereby satisfying the objective of reformation. 6. This court is aware that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. 7. 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. 8. The Lower Court file has been placed before me and I have perused the same and I find the following: a. Conviction: Stealing contrary to Section 268 as read with Section 275 of the Penal Code. Particulars of offence: On the 21st day of August, 2025 at around 1400hrs at Kwale Mbuguni area, Mbuguni Sub-Location, Mbuguni Location, Matuga Sub-County, Kwale County within Coast Region, you stole one pupil’s playing slide equipment from MWANDURI ECD in Mbuguni valued at Kshs. 30,000/= the property of Kwale County Government. b. Plea: Guilty. c. Sentence: Fined Kshs. 50,000/= in default 1 year imprisonment. d. Criminal record: First offender 9. Pre-sentence report –Favorable for a non-custodial sentence. 10. Sentence review report: Not called for. 11. Court: On the authority of the Court of Appeal in Adan v. Republic [1973] EA 445, the learned trial magistrate herein did not properly record the appellant’s plea as the facts of the case were not read over to him by the prosecution at all. Rather the trial court proceeded to convict the offender after the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19430/eng@2025-11-14 2
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charge had been read only. He was charged with two counts, the second being malicious damage to property contrary to section 339(1) of the Penal Code that on the 21st day of August, 2025 at around 1400 Hrs at Kwale Mbuguni area, Mbuguni Sub-Location, Mbuguni Location, Matuga Sub-County, Kwale County within Coast Region, he stole one playing slide equipment for pupils from Mwanduri ECD in Mbuguni valued at Kshs. 30,000/= the property of Kwale County Government. Yet only one plea was recorded. That was an error on the part of the trial court. 12. I find that the subsequent conviction of the appellant was unsafe as it is not certain that the appellant understood the charge. 13. Secondly, the default term of imprisonment imposed of 1 year is beyond the maximum term provided for under the schedule to section 28 of the Penal Code. Under that section, a fine of KShs 50,000/= attracts a maximum term of six months’ imprisonment. 14. The trial court was not clear to which of the offences charged the sentence applied. One sentence appears to have been given for two different offences. 15. In the end, the conviction recorded against the appellant is hereby quashed and the sentences are set aside. 16. Order: The offender should be released from prison forthwith unless otherwise lawfully held. 17. Orders accordingly. RULING DATED, SIGNED AND ISSUED ON THE JUDICIARY VIRTUAL PLATFORM TEAMS, THIS 14TH DAY OF NOVEMBER 2025 HON. ANDAYI W. F. JUDGE SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT HIGH COURT DIV DATE: 2025-11-20 07:35:12 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19430/eng@2025-11-14 3
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