[2017] KEHC 9416 (KLR)
The court found that, given the appellants' age and the time already spent in custody, they had had sufficient opportunity to reflect on their actions. The judge exercised discretion to revise the sentence, determining that the balance of the sentence should be served under probation rather than continued...
Source-derived case information.
- Citation
- [2017] KEHC 9416 (KLR)
- Parties
- Appellant: Benson Ndambuki Nyambura; Appellant: Kelvin Zicon Oluoch; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 133 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence revised; appellants to serve balance under probation
- Judges
- DAS Majanja
- Legal Topics
- Burglary, Sentencing Revision, Probation Orders, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ndambuki Nyambura
Appellant
Kelvin Zicon Oluoch
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellants following their plea of guilty was appropriate in light of their age and time spent in custody.
- 2 Whether the sentence should be revised to allow the appellants to serve the balance under probation.
Ratio Decidendi
The court found that, given the appellants' age and the time already spent in custody, they had had sufficient opportunity to reflect on their actions. The judge exercised discretion to revise the sentence, determining that the balance of the sentence should be served under probation rather than continued incarceration. The court emphasized the rehabilitative purpose of sentencing and the suitability of probation in this context, provided the appellants do not commit further offences. The same reasoning was applied to both appellants, resulting in their release from custody to serve the remainder of their sentence under probation, subject to immediate recommittal if they reoffend.
Court Disposition
sentence revised; appellants to serve balance under probation
Orders
- The sentence is revised; the appellants shall serve the balance of their sentence under probation.
- The appellants are released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
CRIMINAL APPEAL NO.133 OF 2015
BENSON NDAMBUKI NYAMBURA.........1ST APPELLANT
KELVIN ZICON OLUOCH........................2ND APPELLANT
VERSUS
REPUBLIC.....................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. S. Wahome SPM, dated on 17th November, 2015 in Criminal Case No. 2376 of 2015 at Chief Magistrate’s Court Kakamega
J U D G M E N T
1. The appellant BENSON NDAMBUKI NYAMBURA was with other co-accused convicted on his own plea of guilty for the offence of burglary contrary to section 304(2) and stealing contrary to Section 279(b) of the Penal Code.
2. He was sentenced to three years imprisonment. Having regard to his age and the time spent in custody, I am of the view that he has had time to reflect on his Situation.
3. Accordingly I revise the sentence and order that he serves the balance of his sentence under probation. He is released forthwith unless otherwise lawfully held should he commit any offence he shall be committed to complete the balance of his sentence in person. This judgment shall apply to Kelvin Zicon Oluoch
D.S. MAJANJA
JUDGE
DATED and DELIVERED at KAKAMEGA this 1st day of September 2017.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Ng’etich, Senior Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the respondent.