[2018] KEHC 4643 (KLR)
The court found that the applicant, a young first offender with no prior criminal record, demonstrated remorse and had mitigating circumstances including being an orphan and lacking means to pursue further education. The Probation Officer's report supported a non-custodial sentence, and the victim was forgiving. In...
Source-derived case information.
- Citation
- [2018] KEHC 4643 (KLR)
- Parties
- Applicant: Duncan Ochieng Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 134 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; custodial sentence substituted with probation order
- Judges
- RE Aburili
- Legal Topics
- Sentencing Revision, Probation Orders, Handling Stolen Goods, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Ochieng Onyango
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant is entitled to a revision of sentence from custodial to non-custodial sentence.
- 2 Whether the circumstances of the applicant justify substitution of imprisonment with probation.
Ratio Decidendi
The court found that the applicant, a young first offender with no prior criminal record, demonstrated remorse and had mitigating circumstances including being an orphan and lacking means to pursue further education. The Probation Officer's report supported a non-custodial sentence, and the victim was forgiving. In light of the prison decongestion programme and the applicant's potential for rehabilitation, the court held that the custodial sentence should be revised and substituted with a probation order for nine months under supervision, to facilitate guidance and counselling.
Court Disposition
sentence revised; custodial sentence substituted with probation order
Orders
- The sentence of 3 years imprisonment is revised and substituted with an order placing the convict on probation for a period of 9 months from the date of release from prison.
- The convict shall be under close supervision of the Probation Officer, Siaya County, for guidance and counselling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
HC. CR. REV. NO. 134 OF 2018
(CORAM: R. E. ABURILI - J.)
DUNCAN OCHIENG ONYANGO....APPLICANT
VERSUS
REPUBLIC.......................................RESPONDENT
(Being an appeal against both the conviction and the sentence dated 17. 04. 2018 in Criminal Case No. 488 of 2018 in Siaya Law Court before Hon. J. Ong’ondo – PM)
RULING OF THE COURT
The Applicant herein Duncan Ochieng Onyangowas charged with the offence of stealing stock and an alternative count of handling stolen goods contrary to Section 278 and 322(2) of the Penal Coderespectively.
He pleaded not guilty to the 1st Count ad pleaded guilty to the second count before Hon. J. Ong’ondo, PM Siaya in Siaya PM Cr. Case No. 488/2018. He was convicted on his own plea of guilty and sentenced to 3 years imprisonment with hard labour, after mitigations being considered.
He has not challenged the conviction and sentence which this Court finds was sound and lawful.
He however, now applies for revision of sentence stating that he is a first offender. He is aged 22 years and only completed Form 4 in 2014 and passed. That he needs to continue with his further education. He is remorseful for the offence committed, he is an orphan living with his aunt and that he was left with two cows without knowledge that they were stolen property. He states that his future will be bleak if he is left to serve the full sentence. He prays for a non-custodial sentence.
I have considered the plea by the Applicant/Convict who is a young adult and the Probation Officer’s Post Sentence Review Report dated 17/7/2018 by Marvin Nganyi, Probation Officer, Siaya.
I note that this matter was forwarded to Court for consideration in terms of prison decongestion programme where petty offenders or offenders whose prison terms are short can be accorded an opportunity to complete their sentences outside the prison walls.
The Probation Officer’s report is favourble to the convict serving non-custodial sentence. The victim of the stock theft is forgiving and the community appreciates that the victim is hardworking and had no known criminal record. Further that he lacked fees to purse his University education at UON where was admitted but had to drop out to do business and raise fees. The Convict needs guidance and counselling.
In the premises, I allow the request, revise the sentence of 3 years and substitute it with an Order placing the Convict on probation for a period of 9 months from the date of release from prison. The Convict to be under close supervision of Probation Officer, Siaya County for guidance and counselling.
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
Duncan Ochieng Onyango: Applicant in person (present)
Court Assistant: Akida and Brenda