[2024] KEHC 5665 (KLR)
The court found that the applicant, having pleaded guilty, shown remorse, and been recommended for community service by the probation officer, was a suitable candidate for a non-custodial sentence. The offence, though serious, was not aggravated, and the applicant was a first offender with no prior criminal history....
Source-derived case information.
- Citation
- [2024] KEHC 5665 (KLR)
- Parties
- Applicant: Sammy Ewoi Esilan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Lodwar
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E088 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- Custodial sentence set aside; substituted with community service order.
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Review, Community Service Orders, Plea of Guilty, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Ewoi Esilan
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the applicant is eligible for a non-custodial sentence under the Community Service Orders Act.
- 2 Whether the custodial sentence imposed was appropriate given the applicant's circumstances and the nature of the offence.
Ratio Decidendi
The court found that the applicant, having pleaded guilty, shown remorse, and been recommended for community service by the probation officer, was a suitable candidate for a non-custodial sentence. The offence, though serious, was not aggravated, and the applicant was a first offender with no prior criminal history. The legal framework under the Community Service Orders Act permits the imposition of a community service order in such circumstances. The court determined that the interests of justice, rehabilitation, and community protection would be best served by substituting the custodial sentence with a community service order for six months at the Kanamkemer chief’s office, subject to...
Court Disposition
Custodial sentence set aside; substituted with community service order.
Orders
- The applicant shall serve a community service order for six months at Kanamkemer chief’s office.
- Monthly reports to be filed in court by the supervisor through the probation officer.
Full Case Text
Judgment text and source record
22 paragraphs
Esilan v Republic (Criminal Revision E088 of 2024) [2024] KEHC 5665 (KLR) (17 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5665 (KLR)
Republic of Kenya
In the High Court at Lodwar
Criminal Revision E088 of 2024
RN Nyakundi, J
May 17, 2024
Between
Sammy Ewoi Esilan
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence threatening to kill contrary to section 223 of the Penal Code. The particulars of the offence were that on the 6th of May, 2023 in Kanamkemer village Turkana Central Sub-County of the Turkana County the applicant uttered the words “Nimetumwa nikuje nikuue ndio maisha yangu ikue v”. He also faced an alternative charge of malicious property contrary to section 339 (1) of the Penal Code.
2. The applicant pleaded guilty to the offence before Hon. N. Idagwa on 9th May, 2023 and as a consequence, he was convicted on his own plea of guilty and sentenced to serve 2 years imprisonment for the 1st count and a fine of Kshs 5,000/= in default to 18 months imprisonment.
3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) as conjunctively read with Article 50(6)(a)&(b) of the Constitution.
4. The applicant seeks a sentence review based on the sentence review report on record. The report indicates that the applicant admits to the offence and pleads for leniency and forgiveness before court and he is ready to change and work in the family. The report recommended that the applicant is suitable for community service Order for a period of 6 months in Kanamkemer chief’s office.
5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.
6. Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.
7. The analysis of the facts of this case is such that it fits the legal framework of the Community Service Act as an alternative sentence to imprisonment. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve his sentence at Kanamkemer chief’s office for a period of six months. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is that any breach of any conditions by the applicant shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.
SIGNED, DATE AND DELIVERED AT LODWAR THIS 17THDAY OF MAY 2024. …………………………………….R. NYAKUNDIJUDGEIn the Presence ofMr. Jonathan K. Bungei for the StateAppellant