[2024] KEHC 570 (KLR)
The court found that the applicant had already served a significant portion of his sentence, including time spent in remand custody, and that the Sentence Review Report supported his suitability for a non-custodial sentence. In the interests of justice and rehabilitation, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2024] KEHC 570 (KLR)
- Parties
- Applicant: James Mwalimu Hare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E144 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application
- Outcome
- Application for resentencing allowed. Custodial sentence substituted with community service order.
- Judges
- A. Ong’injo
- Legal Topics
- Sexual Offences, Sentencing Review, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwalimu Hare
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application
Legal Issues
- 1 Whether the period spent in remand custody should be factored into the applicant's sentence.
- 2 Whether the applicant is suitable for a community service order as an alternative to continued imprisonment.
Ratio Decidendi
The court found that the applicant had already served a significant portion of his sentence, including time spent in remand custody, and that the Sentence Review Report supported his suitability for a non-custodial sentence. In the interests of justice and rehabilitation, the court exercised its discretion to substitute the remainder of the custodial sentence with a community service order. The order was made conditional upon the applicant serving as an ambassador against sexual and gender based violence in his community and attending monthly public meetings to educate others on the negative effects of such offences. The probation officer was directed to supervise the applicant and file a...
Court Disposition
Application for resentencing allowed. Custodial sentence substituted with community service order.
Orders
- The applicant is placed on community service order at Kisauni Probation Station for a period of 6 months.
- The applicant shall serve as an ambassador against sexual and gender based violence in his home area and attend the Assistant Chief’s baraza at Majaoni at least once a month to educate the public.
Full Case Text
Judgment text and source record
21 paragraphs
Hare v Republic (Miscellaneous Criminal Application E144 of 2023) [2024] KEHC 570 (KLR) (25 January 2024) (Ruling)
Neutral citation: [2024] KEHC 570 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E144 of 2023
A. Ong’injo, J
January 25, 2024
Between
James Mwalimu Hare
Applicant
and
Republic
Respondent
Ruling
Application 1. The applicant James Mwalimu Hare was arraigned in court on 26. 8.2019 and charged in Shanzu Principal Magistrate’s Court Sexual Offence Case No. 103 of 2019 with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on the 19th day of August 2019 at [Partyiculars withheld] Village, Bamburi Location in Kisauni Sub-County within Mombasa County intentionally and unlawfully touched the buttocks and breasts of RNN a child aged 17 years using his fingers.
3. The applicant was convicted and sentenced to serve 5 years imprisonment on 24. 9.2021.
4. In his application for resentencing, the applicant seeks that the 3 months he spent in remand custody should be factored in his sentence.
5. To consider the applicant’s application, this court called for a Sentence Review Report which was filed on 24. 11. 2023 showing that the applicant who is currently 44 years of age and has served 2 years and 4 months in prison and had been remanded from 26. 8.2019 and released on bond on 23. 11. 2019.
6. Having considered the Sentence Review Report, the applicant herein is placed on community service order at Kisauni Probation Station for a period of 6 months. The CSO order is made on condition that the applicant becomes an ambassador against sexual and gender based violence in his home area and attends the Assistant Chief’s baraza at Majaoni at least once in a month and talk to members of the public within his home area about the negative effects of sexual and gender based violence to the community in general. The probation officer in charge of his supervision to file a report to that effect at the conclusion of such supervision.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 25TH DAY OF JANUARY 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia- Court AssistantMr. Ngiri for the RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE