[2019] KEHC 2226 (KLR)
The court found that the offence for which the petitioner was convicted—committing an indecent act with a child—is a serious crime that does not qualify for probation or other non-custodial sentences. The court emphasized that the objectives of sentencing, as outlined in the Sentencing Policy Guidelines, would not...
Source-derived case information.
- Citation
- [2019] KEHC 2226 (KLR)
- Parties
- Applicant: Jared Ondieki Mokua; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Petition 25 of 2019
- Procedural Posture
- Sentence Review Application / Judgment
- Outcome
- petition dismissed
- Judges
- EM Muchoki
- Legal Topics
- Sentencing Policy, Indecent Act With Child, Probation Orders, Remission of Sentence
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Jared Ondieki Mokua
Applicant
The Republic
Respondent
Procedural Posture
Sentence Review Application / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to a reduction of his ten-year custodial sentence to a non-custodial sentence, specifically probation.
- 2 Whether the offence committed qualifies for consideration for probation or other non-custodial orders.
Ratio Decidendi
The court found that the offence for which the petitioner was convicted—committing an indecent act with a child—is a serious crime that does not qualify for probation or other non-custodial sentences. The court emphasized that the objectives of sentencing, as outlined in the Sentencing Policy Guidelines, would not be met by granting a non-custodial sentence in this case. The court further noted that the petitioner had already appealed the conviction and sentence, and the appeal was dismissed with the sentence upheld as lawful. The only avenue for sentence reduction available to the petitioner is remission, which is within the purview of the Prisons authorities and not the court....
Court Disposition
petition dismissed
Orders
- The petition for reduction of sentence to probation or a non-custodial order is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
PETITION NO. 25 OF 2019
JARED ONDIEKI MOKUA.............................PETITIONER
-VRS-
THE REPUBLIC..............................................RESPONDENT
JUDGEMENT
By the Notice of Motion filed herein on 18th July 2019 the petitioner is simply urging a reduction of his ten (10) years imprisonment sentence to a non-custodial one and more especially to probation.
When the application/petition came up for hearing before me the petitioner did not have any documents but as he intimated that he had appealed in this case vide Nyamira HCCRA NO. 649 of 2017, I took the liberty of calling up the file so that I could arrive at an informed decision. It happened that the case file No. 649 of 2017 was the lower court file the appeal in the High Court being HCCRA No. 60 of 2016.
From the record of HCCRA No. 60 of 2016 and the lower court record CMCR 649 of 2017, the petitioner was found guilty and convicted for the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. He was so convicted and sentenced on 26th September 2016. When he appealed to this court, the court affirmed the conviction and upheld the sentence noting that the prosecution had proved its case beyond reasonable doubt and the sentence imposed by the lower court was lawful. He did not appeal the judgement of this court. It is my finding that his petition to have the sentence reduced to an order for probation has no merit. The offence he committed and for which he was convicted and sentenced is a serious offence and is never one of those considered when orders are made to decongest the prisons.Sentences serve a purpose which as set out in the Sentencing Policy Guidelines is: -
“1. Retribution – to punish the offender for his/her criminal conduct in a just manner.
2. Deterrence – to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3. Rehabilitation – to enable the offender reform from his criminal disposition and become a law abiding person.
4. Restorative justice – to address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims; communities and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victim’s needs.
5. Community protection – to protect the community by incapacitating the offender.
6. Denunciation – to communicate the community’s condemnation of the criminal conduct.”
None of the above objectives would be met by making a probation order or other non-custodial sentence. It would be a slap on the wrist to order a non-custodial sentence for such a serious crime. Luckily for the petitioner the High Court has now opened the way for serious crime offenders to be given remission, a power that is exercisable by the Prisons authorities upon the said offenders fulfilling such conditions – see Sammy Musembi Mbugua & 4 others v Attorney General & Another [2019] eKLR. The petitioner having opted not to appeal against the decision of this court ought to await his turn for remission otherwise I concur with Counsel for the respondent that his petition lacks merit. It is dismissed.
Signed, dated and delivered in open court this 14th day of November 2019.
E. N. MAINA
JUDGE