[2024] KEHC 10620 (KLR)
The court found that the trial court failed in its duty to order a mental assessment of the applicant despite clear indications of mental instability in the presentence report. This omission was material, as it could have affected the determination of whether the offences were committed voluntarily or involuntarily....
Source-derived case information.
- Citation
- [2024] KEHC 10620 (KLR)
- Parties
- Applicant: BAM (Brucky Achieng Magak); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E132 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Revision of Sentence
- Outcome
- remainder of prison term suspended; applicant to be released unless otherwise lawfully held
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Mental Health in Criminal Law, First Offender Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
BAM (Brucky Achieng Magak)
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by failing to order a mental assessment of the convict despite indications of mental instability.
- 2 Whether the sentence imposed was appropriate given the convict's mental status and status as a first offender.
- 3 Whether the remainder of the prison term should be suspended in light of the convict's circumstances.
Ratio Decidendi
The court found that the trial court failed in its duty to order a mental assessment of the applicant despite clear indications of mental instability in the presentence report. This omission was material, as it could have affected the determination of whether the offences were committed voluntarily or involuntarily. Given that the applicant is a first offender, has already served over one and a half months in prison, and the sentence imposed was short, the High Court determined that it would be unjust to continue her incarceration without a proper assessment of her mental status. In the interests of justice and in line with the policy of prison decongestion, the court suspended the...
Court Disposition
remainder of prison term suspended; applicant to be released unless otherwise lawfully held
Orders
- The remainder of the prison term is suspended for one year.
- The convict Brucky Achieng Magak shall forthwith be released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
BAM v Republic (Criminal Revision E132 of 2024) [2024] KEHC 10620 (KLR) (10 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10620 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E132 of 2024
RE Aburili, J
September 10, 2024
Between
BAM
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Winam Senior Principal Magistrate’s Court Criminal Case No. E207 of 2024)
Ruling
1. On 30th July 2024, the convict BAM was sentenced to pay cumulative fines of Kshs.15,000 in default to serve one (1) year imprisonment on two counts of stealing contrary to Section 268 of the Penal Code and creating disturbance in a manner likely to cause breach of the peace.
2. The sentences of one (1) year and 90 days respectively were to run concurrently.
3. This was vide Winam SPM Criminal Case No. E207 of 2024. The convict is serving prison term because she is unable to raise the fines.
4. From the presentence report dated 29th July 2024, the convict is a 27 years old single lady. She was found to be mentally unstable although no mental assessment report was ordered on her. She is a first offender. She lived in Kisumu but her home is in Homabay. She was orphaned and suffered from financial distress and hardship, fending for her siblings.
5. In view of the revelation that the convict was mentally unstable, it was the duty of the trial court to order for mental assessment report to establish whether the offences were committed involuntarily or voluntarily.
6. I do not have a conclusive mental assessment report on the convict, either. The sentence imposed is short and the offender is a first offender.
7. She has already served over 11/2 months in prison.
8. I hereby suspend the remainder of the prison term for one year in view of the unassessed mental status of the convict and in the spirit of prison decongestion, order that unless otherwise lawfully held, the convict Brucky Achieng Magak shall forthwith be released from prison.
9. Signal to issue.
10. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 10THDAY OF SEPTEMBER, 2024R. E. ABURILIJUDGE