[2021] KEHC 5405 (KLR)
The High Court found that the sentence imposed on the applicant was lawful and the proceedings were properly conducted. However, considering the short-term nature of the sentence, the applicant's good conduct, willingness to reform, and the need for prison decongestion, the court exercised its discretion under...
Source-derived case information.
- Citation
- [2021] KEHC 5405 (KLR)
- Parties
- Applicant: Joseph Ogutu Odipo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E053 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Revision of Sentence
- Outcome
- Sentence revised; custodial sentence substituted with community service order.
- Judges
- RE Aburili
- Legal Topics
- Sentencing Revision, Community Service Orders, Alcoholic Drinks Control, Manufacture of Illicit Alcohol
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ogutu Odipo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was lawful and properly executed.
- 2 Whether the applicant qualifies for substitution of the custodial sentence with a community service order under the Community Service Orders Act.
Ratio Decidendi
The High Court found that the sentence imposed on the applicant was lawful and the proceedings were properly conducted. However, considering the short-term nature of the sentence, the applicant's good conduct, willingness to reform, and the need for prison decongestion, the court exercised its discretion under Section 3 of the Community Service Orders Act to set aside the remainder of the custodial sentence and substitute it with a community service order. The applicant was ordered to serve the balance of his sentence as supervised and unpaid community service at Sega Health Centre for eight and a half months.
Court Disposition
Sentence revised; custodial sentence substituted with community service order.
Orders
- The remainder of the applicant's prison term is set aside and substituted with supervised and unpaid community service at Sega Health Centre for eight and a half months.
- The applicant shall be under close supervision by the Probation Officer and the Incharge of the Health Centre.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. E053 OF 2021
CORAM: R.E. ABURILI, J
JOSEPH OGUTU ODIPO................................................................APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
(Being an Application for Revision of sentence in Ukwala SRM Court’s Criminal Case No. 355 of 2019 on 03. 03. 2021 by Hon. C. I. Agutu, Senior Resident Magistrate)
RULING ON REVISION
1. The convict Joseph Ogutu was convicted of the offence of manufacturing alcoholic drink contrary to Section 32(1) as read with Section 8 of the Alcoholic Drinks Control Act No. 4 of 2010. He was sentenced to a fine of Kshs. 150,000 in default to serve one (1) years imprisonment.
2. There is no indication on record whether he was a first or repeat offender. He pleaded not guilty to the charge and a full hearing was conducted.
3. According to the charge, the accused was on 27/8/2019 at Sega sub location in Ugenya Sub County within Siaya County found in possession of alcoholic drink to wit 300 litres of Kangara which is used in the Manufacturing of Changaa.
4. He was sentenced on 3/3/2019 to serve one year in prison. If that be the case, one year imprisonment is fully served as a calendar year would lapse on 3/3/2020. This is 24/6/2021 which is more than two years since the convict was sentenced. The probation officer’s report therefore captures erroneous dates.
5. Be as it may, the committal warrant and judgment is clear that sentence was imposed on 3/3/2021 hence the convict has now served three and a half months in prison as he has not raised the fine imposed of Kshs. 150,000. The probation officer recommends that the convict be placed on CSO at Sega Health Centre.
6. The convict is said to be willing to serve non-custodial sentence on Community Service Order, which will enable him look for bursary for his daughter who did KCPE this year and is expected to join Form One. He has six children and is married to 2 wives and is aged 43 years.
7. He has not appealed. He is willing to change and a report from Prisons indicate that he is well behaved with no disciplinary issues.
8. The sentence imposed is lawful. The proceedings were regularly conducted hence there is no impropriety on the record.
9. However, as the sentence imposed is short term of one year and the convict has already served three and a half months, I invoke the provisions of Section 3 of the Community Service Orders Act No. 18 of 2018 and in the spirit of prison decongestion, set aside the sentence imposed by the trial court and substitute the remainder of the prison term with an order that the convict Joseph Ogutu shall serve supervised and unpaid community service at Sega Health Centre under close supervision by the Probation Officer and the Incharge of the Health Centre for a period of eight and a half months from the date of signing of the community Service Order.
10. File closed.
11. Orders accordingly.
Dated, signed and Delivered at Siaya this 24th Day of June, 2021
R.E. ABURILI
JUDGE