[2021] KEHC 2128 (KLR)
The court found that, given the applicant's lengthy period in custody since 2012, the reconciliation within the family and community, and the positive victim impact statement, a non-custodial sentence was appropriate. The court emphasized the importance of rehabilitation and reintegration, supported by the Probation...
Source-derived case information.
- Citation
- [2021] KEHC 2128 (KLR)
- Parties
- Applicant: Brian Kirwa Bowen; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 196 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Sentence on Re Sentencing
- Outcome
- Applicant placed on probation supervision for three years.
- Judges
- NA Matheka
- Legal Topics
- Murder Sentencing, Re Sentencing, Victim Impact Statement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Kirwa Bowen
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence on Re Sentencing
Legal Issues
- 1 Whether the applicant should receive a non-custodial sentence upon re-sentencing for the offence of murder.
- 2 Whether the period already spent in custody and family/community reconciliation justify a probation order.
Ratio Decidendi
The court found that, given the applicant's lengthy period in custody since 2012, the reconciliation within the family and community, and the positive victim impact statement, a non-custodial sentence was appropriate. The court emphasized the importance of rehabilitation and reintegration, supported by the Probation and After Care Services, and placed the applicant on probation supervision for three years under the Probation of Offenders Act.
Court Disposition
Applicant placed on probation supervision for three years.
Orders
- The applicant is placed on Probation Supervision under the Probation of Offenders Act for three years.
- The applicant to abide by the Probation Order.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISCELLANEOUS CRIMINAL APPLICATION NUMBER 196 OF 2018
BRIAN KIRWA BOWEN............................................................APPLICANT
VERSUS
REPUBLIC ..............................................................................RESPONDENT
SENTENCE ON RE-SENTENCING
1. On 30th June 2021 I delivered a Ruling with respect to Brian’s application for re-sentencing.
2. To enable me arrive at an appropriate sentence I had requested for a pre-sentence report. The report that was filed did not contain the Victim Impact Statement. It also made reference to minutes of a family meeting, but the same were not annexed.
3. I have now received the Victim Impact Statement and the minutes of the family meeting.
4. I have carefully considered the report containing the victim impact statement filed on 16th July 2021.
5. To contextualize this ruling, the applicant was found guilty of the murder of his brother Joseph Kipkosgei Bowen and sentenced to death on 2nd February 2017. The offence was committed on 1st April 2012 and he has been in custody since.
6. Having considered the families’ views that they are ready to accept the applicant back home, and to reintegrate him into the community and having considered that the applicant has been in custody from 3rd April 2012, I am persuaded that a non-custodial sentence is appropriate in the circumstances. This is strengthened by the commitment on the part of Probation and After Care Services to support the family in dealing with the issues arising out of the offence.
7. Taking into consideration the period the applicant has spent in custody, the reconciliation within the family and community, the applicant is placed on Probation Supervision under the Probation of Offenders Act, for three (3) years.
8. The applicant to abide by the Probation Order.
9. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH NOVEMBER 2021
MUMBUA T MATHEKA
JUDGE
IN THE PRESENCE OF:-
EDNA COURT ASSISTANT
APPLICANT: PRESENT
FOR STATE: MS. MURUNGA
MR. NDUNG’U PROBATION OFFICER PRESENT