[2024] KEHC 10823 (KLR)
The court found that although the applicant had served a significant portion of his sentence and demonstrated positive conduct in prison, the offence committed—an indecent act with a child—was of such gravity that it outweighed considerations for early release under the decongestion exercise. The court emphasized...
Source-derived case information.
- Citation
- [2024] KEHC 10823 (KLR)
- Parties
- Applicant: Robert Busolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 220 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Non Custodial Sentence Under Decongestion Exercise
- Outcome
- Application for release under decongestion exercise declined.
- Judges
- DR Kavedza
- Legal Topics
- Sexual Offences, Sentencing Principles, Prison Decongestion, Child Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Busolo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Non Custodial Sentence Under Decongestion Exercise
Legal Issues
- 1 Whether the applicant qualifies for release under the Chief Justice's decongestion memo given the nature of the offence and time served.
- 2 Whether the applicant's conduct and rehabilitation in prison justify a non-custodial sentence despite the seriousness of the offence.
Ratio Decidendi
The court found that although the applicant had served a significant portion of his sentence and demonstrated positive conduct in prison, the offence committed—an indecent act with a child—was of such gravity that it outweighed considerations for early release under the decongestion exercise. The court emphasized the need for sentences in such cases to reflect the seriousness of the violation, serve as both punishment and deterrence, and fully account for the harm caused to the victim. The Probation Report's focus on the short duration served post-conviction was found to be inconsistent with the trial court's order that the sentence be computed from the date of plea. Ultimately, the court...
Court Disposition
Application for release under decongestion exercise declined.
Orders
- The applicant shall complete the remainder of his custodial sentence.
- The file shall be returned to the lower court for safe custody.
Full Case Text
Judgment text and source record
25 paragraphs
Busolo v Republic (Criminal Revision 220 of 2024) [2024] KEHC 10823 (KLR) (17 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10823 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 220 of 2024
DR Kavedza, J
September 17, 2024
Between
Robert Busolo
Applicant
and
Republic
Respondent
Ruling
1. This file was brought before me for the decongestion exercise pursuant to the Chief Justice’s memo dated 7/12/2022, which provides that inmates who are serving three (3) years imprisonment or less, or those serving long sentences but have a balance of three (3) years or less may be considered for non-custodial sentences.
2. I have gone through the file and noted that applicant was convicted by the trial court for the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve 5 years imprisonment.
3. According to the Prison Conduct Report dated 15th August 2024, the applicant has served 2 years and 8 months of his sentence, with 1 year and 4 months remaining, after accounting for a remission period of 1 year and 8 months.
4. A probation report was also filed with respect to the applicant. According to the said report, the applicant has been receptive to rehabilitation while in prison. However, the report suggests that since the Applicant has not served a considerable time of his sentence since his conviction, he should be detained further.
5. I have noted that the Probation Report only considered the duration of 8 months that the Applicant served after conviction. However, I have perused the trial record and noted that the trial court ordered that the sentence of 5 years should be computed from the date of Plea, 31/08/2022. I shall therefore rely of the above-mentioned Prison Conduct Report, which is consistent with the trial court’s ruling on sentence.
6. Nevertheless, the offense committed by the Applicant is of a grave nature, involving the indecent act of a child. Such offenses have long-lasting psychological and emotional impacts on the victims, and society expects firm punishment as a deterrent for such conduct.
7. While the Probation Report highlights the Applicant’s receptiveness to rehabilitation, this alone cannot outweigh the gravity of the offense. Given the seriousness of crimes involving children, it is imperative that the sentence imposed reflects the severity of the violation and serves as both punishment and a deterrent to others who may contemplate similar offenses.
8. Therefore, despite the favourable aspects of the Applicant’s conduct in prison, it is in the interest of justice that the Applicant completes the remainder of his custodial sentence in order to fully account for the harm caused by his actions.
9. Consequently, I decline to release the Applicant under the decongestion exercise.
10. The file shall be returned to the lower court for safe custody.Orders accordingly.
RULING DELIVERED THIS 17TH DAY OF SEPTEMBER 2024. D. KAVEDZAJUDGE