[2021] KEHC 8902 (KLR)
The court found that although the original sentence of two years imprisonment for assault causing actual bodily harm was lawful and lenient, the applicant had served half of the sentence, demonstrated remorse, and was a first offender. The court considered the applicant's family circumstances, the nature of the...
Source-derived case information.
- Citation
- [2021] KEHC 8902 (KLR)
- Parties
- Applicant: Daniel Machia Otiato; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E001 of 2021
- Procedural Posture
- Criminal Revision / Judgment on Revision of Sentence
- Outcome
- sentence revised; custodial sentence substituted with probation
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Assault Causing Actual Bodily Harm, Probation Orders, Mitigation, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Machia Otiato
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment on Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant for assault causing actual bodily harm should be revised.
- 2 Whether the applicant's remorse, status as a first offender, and family circumstances justify a non-custodial sentence.
- 3 Whether the interests of justice and rehabilitation are served by revising the custodial sentence to probation.
Ratio Decidendi
The court found that although the original sentence of two years imprisonment for assault causing actual bodily harm was lawful and lenient, the applicant had served half of the sentence, demonstrated remorse, and was a first offender. The court considered the applicant's family circumstances, the nature of the offence as a misdemeanor, and the need for rehabilitation. The probation officer's report indicated the applicant required further reformation, but the court determined that a non-custodial sentence would provide an opportunity for reconciliation with the complainant and the community. Accordingly, the court exercised its discretion to revise the sentence to nine months probation...
Court Disposition
sentence revised; custodial sentence substituted with probation
Orders
- The applicant Daniel Machia Otiato shall serve 9 months probation for the remainder of the prison term, effective from the date of release upon service of this order on prison authorities.
- File closed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION NO. E001 OF 2021
CORAM: HON. R.E. ABURILI, J
DANIEL MACHIA OTIATO............................................................APPLICANT/CONVICT
VERSUS
REPUBLIC........................................................................................................RESPONDENT
(An Application seeking Revision of sentence in Criminal Case No. 101 of 2020
at Bondo Principal Magistrate’s court delivered on 28. 2.2020
by Hon. S. Mathenge, Resident Magistrate)
JUDGMENT ON REVISION OF SENTENCE
1. The Applicant/convict herein Daniel Machia Otiato was convicted on his own Plea of guilty for the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code on 28/2/2020 by Hon. S. Mathenge, Resident Magistrate in Bondo PM Cr. Case No. 101 of 2020. After mitigation and Presentence report, he was sentenced to serve 2 years imprisonment. He has not appealed. He has now served one year in prison.
2. On 5/2/2021, he applied to this court for sentence Revision claiming that he is remorseful and pleads for the court’s leniency. He is a first offender and that he has reformed. He has a young family and a wife who depended on him for livelihood.
3. I have considered the application for sentence Revision, mitigation and Presentence Report dated 28/2/2020. I take cognizance of the fact that the applicant has now served 1 year of the 2 years imprisonment and that he is remorseful and has learnt his lesson while in prison, as he was a breadwinner for his young family who are now desperate.
4. The Complainant was a 14 year old girl and no reasons were given why the accused attacked the Complainant minor. The Probation Officer established that the Applicant/convict is problematic in the community and is abrasive. He was a boda boda rider. He needs extreme reformation programme.
5. I have considered the fact that he was a first offender despite his abrasiveness and he readily accepted his mistake and admitted the offence.
6. I have also considered the injury occasioned on the Complainant being a cut wound on the head and swelling on the left arm occasioned by beating using a stick.
7. As the Applicant has served half of the prison term and promises to be law abiding, in my humble view, and as the offence is a misdeameanour, he deserves a chance for non-custodial sentence to enable him find an opportunity to apologize and reconcile with the Complainant and her family and the community at large, who view him negatively. He has been in prison where people are rehabilitated to reform and be better citizens.
8. For the above reasons, albeit the sentence imposed was lawful and lenient, I exercise discretion and revise the 2 years prison term and order that the convict/Applicant Daniel Machia Otiato alias Atiara shall serve 9 months probation for the remainder of the prison term, to be calculated from the date of his release upon service of this order upon prison authorities. Orders accordingly.
9. File closed.
Dated, signed and Delivered at Siaya this 1st Day of March 2021
R.E. ABURILI
JUDGE