[2019] KEHC 2308 (KLR)
The court found that although the original sentence of a fine of KShs.50,000 or 12 months imprisonment was lawful, the convict's inability to pay the fine, his demonstrated remorse, the complainant's forgiveness, and the Probation Officer's recommendation for community service justified revision of the sentence. The...
Source-derived case information.
- Citation
- [2019] KEHC 2308 (KLR)
- Parties
- Applicant: Joseph Odhiambo Asianga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 61 of 2019
- Procedural Posture
- Criminal Revision / Sentence Revision Ruling
- Outcome
- Sentence revised; fine and imprisonment set aside; community service order imposed.
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Assault Causing Actual Bodily Harm, Community Service Orders, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Odhiambo Asianga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Revision Ruling
Legal Issues
- 1 Whether the sentence of a fine of KShs.50,000 in default 12 months imprisonment for assault causing actual bodily harm should be revised in light of the convict's socio-economic circumstances and mitigation.
- 2 Whether a non-custodial sentence is appropriate given the circumstances of the offence and the convict's remorse.
Ratio Decidendi
The court found that although the original sentence of a fine of KShs.50,000 or 12 months imprisonment was lawful, the convict's inability to pay the fine, his demonstrated remorse, the complainant's forgiveness, and the Probation Officer's recommendation for community service justified revision of the sentence. The court exercised its discretion to set aside the fine and imprisonment, substituting them with an order for the convict to serve unpaid community service at Got Osimbo Dispensary under probation supervision until 11 March 2020, thereby balancing the interests of justice, rehabilitation, and the convict's socio-economic realities.
Court Disposition
Sentence revised; fine and imprisonment set aside; community service order imposed.
Orders
- The fine of KShs.50,000 in default 12 months imprisonment is set aside.
- The convict Joseph Odhiambo Asianga shall be released from prison to serve unpaid community service at Got Osimbo Dispensary under supervision of the Probation Officer, Ugunja, until 11 March 2020 from the date of release.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION CASE NO. 61 OF 2019
JOSEPH ODHIAMBO ASIANGO....................APPLICANT
VERSUS
REPUBLIC.......................................................RESPONDENT
(Being an application for revision of sentence in Ukwala PMCRC NO. 272 of 2019 dated 11. 7.2019 before Hon. C.N. Sindani – SRM)
SENTENCE REVISION RULING
1. The Convict Joseph Odhiambo Asanga was on 11. 7.2019 convicted and sentenced by Ukwala SRM in Cr. Case No. 272 of 2019 for the offence of assault causing actual bodily harm. He pleaded guilty to the charge and he has not appealed against conviction and sentence.
2. He has filed this Revision application seeking for sentence review of a fine of KShs.50,000/= in default to serve one year in prison.
3. I have considered the application for revision dated 30. 9.2019. The Convict is 26 years old mechanic and married with two young children. He fends for them and says he is remorseful for the offence and pleads for leniency and a non-custodial sentence. The Complainant was 23 years old and she was injured by slaps on her and the degree of injury was assessed as harm. In his mitigation the convict stated that he accepted his mistakes. He will not repeat again. The trial Court considered the mitigations before sentencing him.
4. I have considered the Probation Officer’s Report filed on 11. 11. 2019. The Convict and Complainant are neighbors. He is a Boda Boda operator who pays rent for his family which is suffering as rent arrears accumulates.
5. The Victim was not reached but the Probation Officer received information that she had forgiven the convict and even visited him twice in prison. The Probation Officer is of the view that Community Service is suitable for the offender Convict.
6. Taking into account all the above circumstances, although the sentence meted out is lawful, taking into account the socio-economic circumstances of the Convict, he cannot raise KShs.50,000/= fine and as there is room for reconciliation with the Complainant who was a neighbour and with the convict being remorseful, I exercise discretion and set aside the fine of KShs.50,000 in default 12 months imprisonment and substitute it with the Order that the Convict Joseph Odhiambo Asianga shall be released from Prison to serve unpaid Community Service at Got Osimbo Dispensary under supervision of M/s. Rhoda Wanyonyi, Probation Officer, Ugunja for a period upto 11. 3.2020 from the date of his release from Prison.
7. Orders accordingly.
Dated, Signed and Delivered at Siaya this 11th day of November, 2019.
R.E. ABURILI
JUDGE