[2023] KEHC 23800 (KLR)
The court found that, despite the probation officer's recommendation for continued custody, the best interests of the child as mandated by Article 53 of the Constitution required that the applicant be released from prison and serve the remainder of her sentence on probation. The court considered the applicant's...
Source-derived case information.
- Citation
- [2023] KEHC 23800 (KLR)
- Parties
- Applicant: DC; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E053 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- Applicant released from prison to serve remainder of sentence on probation.
- Judges
- JK Sergon
- Legal Topics
- Child Neglect, Sentencing Review, Probation Orders, Best Interests of Child
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
DC
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the applicant should serve the remainder of her sentence in prison or on probation given her health and social circumstances.
- 2 Whether the best interests of the child, as required by Article 53 of the Constitution, necessitate a revision of the custodial sentence.
Ratio Decidendi
The court found that, despite the probation officer's recommendation for continued custody, the best interests of the child as mandated by Article 53 of the Constitution required that the applicant be released from prison and serve the remainder of her sentence on probation. The court considered the applicant's health status, lack of family support, and the need for both the applicant and her child to access psycho-social and medical support in the community. The court concluded that probation, under supervision, would better serve the welfare of the applicant and her child than continued incarceration.
Court Disposition
Applicant released from prison to serve remainder of sentence on probation.
Orders
- The applicant is set free from prison and ordered to serve the remainder of her sentence of two years five months on probation under the supervision of the County Probation Officer, Kericho.
- The applicant to be escorted home by Mr. Charles Kosgei, Ag. Chief, Waldai Location and Mr. Charles Kirui, Assistant Chief, Koitalel Sub-Location.
Full Case Text
Judgment text and source record
22 paragraphs
DC v Republic (Criminal Revision E053 of 2023) [2023] KEHC 23800 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23800 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E053 of 2023
JK Sergon, J
October 19, 2023
Between
DC
Applicant
and
Republic
Respondent
Ruling
1. DC hereinafter referred to as the Applicant was convicted of the offence of child neglect contrary to section 127 (1) (a) of theChildren’s Act No.8 of 2001
2. On December 6, 2022, Hon. L.A. Mwera, the learned resident magistrate sentenced the applicant to serve three (3) years imprisonment.
3. The proceedings relating to the aforesaid case, that is Kericho CMCR Case No. E021 of 2022 Republic-vs- DC were placed before this court pursuant to the provisions of section 362 and 364 of the Criminal Procedure Code.
4. The Probation Officer filed a sentence review report on July 24, 2023. In the said report it was noted that the applicant was desirous of completing her sentence while in prison as she does not have anyone who can offer her medicare and financial support for the reason that she is HIV positive and is on ARV medication. The prison authorities were of the view that the applicant and her child are on treatment and that it was beneficial for them to complete the same. The probation officer noted that the applicant does not have close family ties and no family member (s) who can offer her social/psychological support if released, she therefore recommended that the applicant completes the remaining term of her sentence in custody to ensure that she and her child continue with medicare.
5. I have already stated the sentence pronounced by the Learned Resident Magistrate. The applicant has so far served seven (7) months and is remaining with two (2) years and five (5) months to complete her sentence.
6. Having considered the recommendation of the probation officer, the circumstances of this case and taking into account the best of the child as espoused in article 53 of the Constitution of Kenya. I hereby order that the Applicant be set free from prison and ordered to serve the remainder of her sentence of two (2) years five (5) months on Probation under the supervision of the County Probation Officer, Kericho.
7. The applicant Namely:- DC to be escorted home by Mr. Charles Kosgei, (0720xxxxxx), Ag. Chief, Waldai Location and by Mr. Charles Kirui, Assistant Chief, Koitalel Sub-Location (0729-xxxxxx). The applicant to seek for psycho-Social support from Sosiot Sub-County Hospital.
DATED, SIGNED AND DELIVERED THIS 19TH DAY OF OCTOBER, 2023. ..................J.K. SERGONJUDGE