[2021] KEHC 8302 (KLR)
The court, having set aside the original custodial sentence on appeal, considered the pre-sentencing report which indicated that both the victim and appellant were children in need of care and protection at the time of the offence. The report recommended a non-custodial sentence, noting the appellant's positive...
Source-derived case information.
- Citation
- [2021] KEHC 8302 (KLR)
- Parties
- Appellant: Isaac Mutie Nthenge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 99 of 2019
- Procedural Posture
- Criminal Appeal / Sentencing After Appeal
- Outcome
- appellant sentenced to probation for three years
- Judges
- GMA Dulu
- Legal Topics
- Sentencing, Probation Orders, Juvenile Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Mutie Nthenge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentencing After Appeal
Legal Issues
- 1 Whether the appellant should be given a custodial or non-custodial sentence after the conviction was upheld.
- 2 What weight should be given to the pre-sentencing report and the appellant's current circumstances.
Ratio Decidendi
The court, having set aside the original custodial sentence on appeal, considered the pre-sentencing report which indicated that both the victim and appellant were children in need of care and protection at the time of the offence. The report recommended a non-custodial sentence, noting the appellant's positive conduct, lack of negative impact on the victim, and current responsibilities as an adult and breadwinner. The court found that a probation order would serve the interests of justice, rehabilitation, and community safety, and thus sentenced the appellant to three years' probation under the supervision of the Probation Officer, Makueni County.
Court Disposition
appellant sentenced to probation for three years
Orders
- The appellant is sentenced to probation for three years under the oversight of the Probation Officer, Makueni County.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. 99 OF 2019
ISAAC MUTIE NTHENGE......APPELLANT
-VERSUS-
REPUBLIC .......................... RESPONDENT
RULING
1. On the 10th December 2020, this court delivered its judgment on the appeal herein, written dated and signed on 2nd December 2020 by H. I. Ong’udi J.
2. In the said judgment, this court set aside the sentence imposed by the trial court and issued directions on sentencing as follows -
“The upshot is that the appeal partially succeeds. The conviction is upheld and the sentence of ten (10) years is set aside. I hereby call for a pre-sentencing report by the Makueni County Probation Officer. The Appellant to report to the Probation Officer today. The report to be filed within 30 days. The Appellant remains in the earlier bond terms until then.”
3. Consequently, upon the issuance of the above court orders, a pre-sentencing report dated 18th January 2021 signed by S.M Munyasya – Probation Officer Makueni was filed. In the said report it was noted that both the victim and Appellant were children in need of care and protection as at the time of the offence, due to bad parenting, and concluded as follows –
“… in view of the findings, the Appellant may be considered for non-custodial sentence where theoffice may assist him pursue his beauty therapy course to the completion while under supervision” This is however subject to other considerations by the Honourable court.”
4. I have taken into account that according to the above pre-sentencing report, the victim suffered no negative effect from the incident. In addition, the Appellant is now an adult who is married with one child and is the bread winner of his family. The Appellant has also been on bond during the pendency of the appeal, and the Probation Department has undertaken to assist him pursue studies if granted non-custodial sentence.
5. Taking into account the above factors, I sentence the Appellant to be on Probation for three (3) years from today, under the oversight of the Probation Officer Makueni County.
DATED SIGNED & DELIVERED, THIS 24TH DAY OF MARCH 2021, IN OPEN COURT AT MAKUENI.
……………………………….
GEORGE DULU
JUDGE