[2019] KEHC 6380 (KLR)
The court found that the applicant was inconsistent in reporting for community service as directed by the original order. While the applicant produced medical documents justifying absence for certain periods, the worksheet and attendance register demonstrated that she failed to report for work on numerous occasions...
Source-derived case information.
- Citation
- [2019] KEHC 6380 (KLR)
- Parties
- Applicant: Elizabeth Nekesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 68 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- SN Riechi
- Legal Topics
- Community Service Orders, Sentence Review, Breach of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Nekesa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicant willfully failed to comply with the Community Service Order imposed by the trial court.
- 2 Whether the applicant's medical condition justified her failure to report to the assigned workplace under the Community Service Order.
- 3 Whether the trial court was justified in revoking the Community Service Order and substituting it with a custodial sentence.
Ratio Decidendi
The court found that the applicant was inconsistent in reporting for community service as directed by the original order. While the applicant produced medical documents justifying absence for certain periods, the worksheet and attendance register demonstrated that she failed to report for work on numerous occasions outside the periods covered by medical sick-off. The court held that the applicant's medical condition did not absolve her from reporting to work to be assigned light or appropriate duties except when she was officially on sick leave. The trial magistrate was therefore justified in revoking the Community Service Order and substituting it with a custodial sentence. The...
Court Disposition
application dismissed
Orders
- The application for review of the revocation of the Community Service Order is dismissed.
- The custodial sentence imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. CRIMINAL APPL. NO. 68 OF 2018
ELIZABETH NEKESA.................................APPLICANT
VERSUS
REPUBLIC..................................................RESPONDENT
[An appeal from Ruling by Hon. E. Mwenda – SRM dated 28. 9.2018]
RULING
The appellant/Applicant Elizabeth Nekesa was on 22. 6.2005 charged with the offence of causing Grievious harm Contrary to Section 234 of the Penal Code.
The particulars of the offence were that on the 12th day of May, 2015 at Syombe Sub-location in Kimaiti Location Bumula District within Bungoma County unlawfully did grievious harm to Roselyne Nasambu.
After full trial, the applicant was found guilty and on 4. 1.2018 committed to serve Two (2) years imprisonment of Community service at Syombe Primary School. She was expected, as terms of the Community Service Order, to perform unpaid public work at Syombe Primary School; under the supervision of the supervisor and overall monitoring by the District Community Service Officer.
On 20. 9.2018 the Community Service Officer approached court and informed court that the applicant had failed to comply with the Community Service Order in particular by failing to report to her workplace. The applicant in response informed court that she was hit by a cow and therefore would not be able to work and produced Medical documents showing she was directed to have bed rest for one week which was later extended for another one week. She however did not report to the workplace after the bed rest prompting the application for revocation of the order, which was substituted with 3 years imprisonment.
Mr. Anwar for the applicant sought review of the order on the grounds that the applicant did work and she produced documents to show she was unwell. He tendered a worksheet/attendance Register from the work place to confirm the same. Mr. Oimbo opposed the application contending that the applicant did not perform community service as required and that the worksheet only shows the days she worked.
I have considered the application and Response by state. A perusal of the work Recording Sheet tendered by Counsel for the applicant shows;
1. February 2018
1st, 2nd, 5th, 6th, From 7th – 29th she did not report to work excluding weekends.
2. March 2018
She only report on 26, 27, 28, 29.
1st – 22nd - Not reported to work excluding weekends.
3. April 2018
She reported only on 3, 4, 5, 6th and 31st.
4. June 2018
She reported only on 27th 28th – 29th.
From a perusal of the Worksheet, it is clear to this court as it was to this trial court that the applicant was inconsistent in reporting for work as directed. Her Medical Condition did not absolve her from reporting to work to be assigned light or appropriate duties except when she was given sick offs. I am satisfied that where the offender has willfully failed to comply with a Community Service Order, the Court can cancel the order and make mete out any appropriate sentence, which is what the trial magistrate did. I find no merit in this application for Review and same is dismissed.
Dated and Delivered at Bungoma this 4th day of June, 2019.
S.N. RIECHI
JUDGE