[2020] KEHC 7122 (KLR)
The court found that, although the offence of possession of bhang is serious and negatively impacts the community, the applicant's status as a first offender, his guilty plea, and the extraordinary circumstances of the Covid-19 pandemic warranted a revision of the sentence. The trial court's failure to seek a social...
Source-derived case information.
- Citation
- [2020] KEHC 7122 (KLR)
- Parties
- Applicant: Fredrick Oduor Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 38 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; remainder of prison term suspended; applicant released with warning
- Judges
- RE Aburili
- Legal Topics
- Sentencing Revision, Possession of Narcotic Drugs, Mitigation, Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Oduor Onyango
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant for possession of bhang should be revised in light of his status as a first offender and the prevailing Covid-19 pandemic.
- 2 Whether the trial court erred by not seeking a social inquiry report before sentencing.
Ratio Decidendi
The court found that, although the offence of possession of bhang is serious and negatively impacts the community, the applicant's status as a first offender, his guilty plea, and the extraordinary circumstances of the Covid-19 pandemic warranted a revision of the sentence. The trial court's failure to seek a social inquiry report was noted, but due to current restrictions, such a report could not be obtained. Considering the applicant had already served about six months of the one-year sentence, the court exercised its discretion to suspend the remainder of the prison term and ordered the applicant's release, subject to a warning not to reoffend within six months.
Court Disposition
sentence revised; remainder of prison term suspended; applicant released with warning
Orders
- The remainder of the prison term is suspended.
- The applicant Fredrick Oduor Onyango is ordered to be released from prison.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION NO. 38 OF 2020
(CORAM: R. E. ABURILI - J.)
FREDRICK ODUOR ONYANGO.......APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
(Being an Application for revision of sentence vide Senior Magistrate’s Court, Ukwala Criminal Case No. 425 of 2019 dated 14. 10. 2019 before Hon. C.N. Sindani, Senior Resident Magistrate)
RULING
1. The convict Fredrick Oduor Onyango was convicted on his own plea of guilty for the offence of being found in possession of 48 rolls of Bhang as proven by production of a Government Analyst report as exhibit. He was sentenced to pay a fine of Kshs. 200,000/= in default to serve 1 year in prison. The value of the narcotic drug is Kshs. 1,000/=.
2. In mitigation, he pleaded for leniency. The Prosecution stated that it had no previous records hence the convict is a first offender.
3. I have considered the request for Revision of Sentence for purposes of prison decongestion at this critical moment in our county when we are all threatened by the spread of Covid -19 global pandemic. The offence is serious as it negatively affects the community. Bhang partakers also get involved in other crimes such as theft, robbery and assault or violence generally.
4. However, as the convict is a first offender and he pleaded guilty and sought for forgiveness, the trial court should have sought for a social inquiry repot which he did not. At the moment, the probation officers may not access prisons to interview the prisoners due to the necessary restrictions occasioned by the COVID-19 plague.
5. For that reason, and as the convict has been in prison, including remand period, for about six months of the one year imprisonment imposed, I hereby exercise judicial discretion and in the spirit of promoting prison decongestion, I suspend the remainder of the prison term and order for the release of the convict Fredrick Oduor Onyango with a warning for him not to commit any offence in the next six months or face arrest and recommittal to prison to complete sentence.
6. Orders accordingly
Dated, signed and delivered at Siaya, this 19th Day of March 2020.
R.E. ABURILI
JUDGE