[2021] KEHC 8415 (KLR)
The court found that the applicant had demonstrated genuine remorse and significant rehabilitation, as evidenced by his conduct, educational achievements, and positive reports from prison authorities. The court held that the objectives of sentencing—deterrence, rehabilitation, and restorative justice—had been met in...
Source-derived case information.
- Citation
- [2021] KEHC 8415 (KLR)
- Parties
- Appellant: Benedict Nzioka Kimeu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2020
- Procedural Posture
- Criminal Resentencing Application / Ruling on Resentencing Application After Unsuccessful Appeal
- Outcome
- application for resentencing allowed; sentence reduced to period served; applicant to be released forthwith unless otherwise lawfully held
- Judges
- BB Limo
- Legal Topics
- Defilement, Sentencing Policy, Resentencing, Rehabilitation of Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Nzioka Kimeu
Appellant
Republic
Respondent
Procedural Posture
Criminal Resentencing Application / Ruling on Resentencing Application After Unsuccessful Appeal
Legal Issues
- 1 Whether the applicant is entitled to resentencing after conviction for defilement and giving false information.
- 2 Whether the objectives of sentencing, including deterrence, rehabilitation, and restorative justice, have been achieved in the applicant's case.
- 3 Whether the Supreme Court decision in Francis Karioko Muruatetu applies to the applicant's circumstances.
Ratio Decidendi
The court found that the applicant had demonstrated genuine remorse and significant rehabilitation, as evidenced by his conduct, educational achievements, and positive reports from prison authorities. The court held that the objectives of sentencing—deterrence, rehabilitation, and restorative justice—had been met in the applicant's case. Relying on the Supreme Court's guidance in Francis Karioko Muruatetu, the court determined that the applicant deserved a second chance outside jail. Consequently, the original sentence of 15 years was set aside and substituted with a sentence equivalent to the period already served, resulting in the applicant's immediate release unless otherwise lawfully...
Court Disposition
application for resentencing allowed; sentence reduced to period served; applicant to be released forthwith unless otherwise lawfully held
Orders
- The sentence of 15 years imposed in Kitui Chief Magistrate’s Court Criminal Case no. 35 of 2015 and upheld in Criminal Appeal No. 15 of 2016 is set aside.
- The applicant is sentenced to the period already served.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 5 OF 2020
BENEDICT NZIOKA KIMEU.....................................................................PETITIONER
VERSUS
REPUBLIC...................................................................................................RESPONDENT
R U L I N G
1. ‘‘The Road to Damascus experience’’ aptly describes the matter before this court because before me, is a man who though convicted of defilement Contrary to Section 8(1) as read withSection 8(4)of Sexual Offence Act No. 3 of 2006 and giving false information to a person employed in the Public ServiceContrary to Section129(a) of the Penal Code appears a changed man. The defilement was in regard to a girl aged 16 years who according to the proceedings from the lower court, was said to have fallen in love with the Applicant herein. The Applicant was convicted upon trial and sentenced to serve 1 year in jail for giving false information and 15 years for defilement.
2. The Applicant approached this court asking for re-sentencing after his appeal in Kitui High Court Criminal Appeal No. 15 of 2016 was unsuccessful. Looking at him in the dock, I found him standing with a gait that bespoke of a man who has really experienced a Damascus moment. His posture in the dock complete with a rosary on one hand and a bible on the other spoke volumes about the apparent transformation and strides he has made since he was convicted to serve his term in the correctional facility. He had no hesitation in admitting that he had made a mistake for which he appeared absolutely remorseful. Quoting from the Holy Book (Job 36:5-12), he told this court that he had repented from his sins, and that the afflictions he had faced had served to correct him and made him encouraged.
3. To prove that he had transformed like Saul did in the Holy Book and became Paul, he produced Certificates and Diplomas which ranged from Diploma in Theology, Diploma in Discover Bible, Certificate in Leadership and an impressive report from officer in charge of Kitui Prison showing that the convict has a clean record in prison and has been a good mentor to other prisoners. He now says he is an Assistant Catechist in prison and that he has positively changed many prisoners while serving his term both in Machakos G.K. Prison and Kitui G.K. Prison.
4. This court was not surprised when the Counsel for the Director of Public Prosecution supported the application for resentencing stating that, perhaps the Applicant did not get sufficient time to mitigate against the sentence meted out against him.
5. This court finds that one of the main objective of sentencing as per the sentencing policy guidelines are; -
(i) Deterrence
To deter the offender from committing a similar offence subsequently as well as discourage others from committing similar offences.
(ii) Rehabilitation
To enable the offender reform from his criminal disposition and become a law abiding citizen.
(iii) Restorative justice
To address the needs arising from the criminal conduct such as loss and damage to the victims.
This court has considered all the above in respect to the Applicant herein and find that all the objectives of placing the Applicant behind bars have been attained. Besides that, given the supreme court’s decision in the case of Francis Karioko Muruatetu (2017) eKLR,I have no doubt in my mind that this is one of those occasions where the decision from the said Supreme Court’s decisions becomes quite handy for those prisoners who have reformed and transformed to deserve a second chance outside jail.
I have to commend the prison authorities for the strides they have made in reforming convicts since the promulgation of the Constitution of Kenya 2010 to become a true convectional facility with success stories such as in this instance. This is an example of a job well done and I am sure even the in charge Kitui Prison and Machakos G.K. Prison are likely to have those feelings teachers in schools normally have when their candidates perform well in examinations.
In sum this court allows this application. The Applicant has spent about 5 years in jail. The sentence of 15 years meted out in Kitui Chief Magistrate’s Court Criminal Case no. 35 of 2015 and upheld in this court in Criminal Appeal No. 15 of 2016, is hereby set aside and in its place the applicant is sentenced to the period he has already served. This means he shall be set free forthwith unless lawfully held.
Dated, Signed and Delivered at Kitui this 18th day of March, 2021.
HON. JUSTICE R. K. LIMO
JUDGE