[2018] KEHC 4650 (KLR)
The court found that while the conviction and original sentence of two years imprisonment for obtaining money by false pretences were lawful and unchallenged, the applicant could benefit from a non-custodial sentence in line with the Prison Decongestion Policy. The court considered the applicant's remorse, potential...
Source-derived case information.
- Citation
- [2018] KEHC 4650 (KLR)
- Parties
- Applicant: Charles Ondego Opiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 129 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- Custodial sentence revised to non-custodial probation supervision.
- Judges
- RE Aburili
- Legal Topics
- Obtaining Money by False Pretences, Sentencing Revision, Prison Decongestion Policy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ondego Opiyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the applicant's custodial sentence should be revised to a non-custodial sentence in light of the Prison Decongestion Policy.
- 2 Whether the conviction and sentence were lawful and sound.
Ratio Decidendi
The court found that while the conviction and original sentence of two years imprisonment for obtaining money by false pretences were lawful and unchallenged, the applicant could benefit from a non-custodial sentence in line with the Prison Decongestion Policy. The court considered the applicant's remorse, potential for rehabilitation, and the opportunity for the complainant to recover her money through civil proceedings. Consequently, the court exercised its discretion to revise the custodial sentence to a non-custodial sentence of nine months probation supervision.
Court Disposition
Custodial sentence revised to non-custodial probation supervision.
Orders
- The prison sentence of two years imprisonment is revised and substituted with a non-custodial sentence of nine months probation supervision by the Probation Officer, Siaya.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
HC. CR. REV. NO. 129 OF 2018
(CORAM: R. E. ABURILI - J.)
CHARLES ONDEGO OPIYO..............APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
(Being an appeal against both the conviction and the sentence
dated 21. 3.2018in Criminal Case No. 436 of 2017
in
Siaya Law Courtbefore Hon. J. Ongondo – PM)
RULING OF THE COURT
I have perused the file. I have also considered the Probation Officer’s post sentencing Review Report. The convict is serving 2 years imprisonment for the offence of obtaining money by false pretences. The conviction was sound and the sentence is lawful. The same are not being challenged.
However, in line with the Prison Decongestion Policy, I note that the convict can benefit from a lesser sentence which is non-custodial. The Complainant victim of the crime has the opportunity to claim and recover from the convict her money which the convict received through the filing of a Civil Suit against the convict who is now remorseful and has skills to work and eke a living.
In the premises, I revise the prison sentence 2years imprisonment and substitute it with a non-custodial sentence of 9months of Probation Supervision by Probation Officer, Siaya.
Dated, Signed and Delivered at SIAYA this 31ST day of July 2018.
R.E. ABURILI
JUDGE
In the presence of:
Mr. Okach: Prosecution Counsel for the State
Charles Ondengo: Appellant in person (present)
Court Assistant: Akida and Brenda