[2020] KEHC 7124 (KLR)
The court found that although the sentence imposed was lawful, the trial court should have considered a probation report in light of the applicant's mitigation and lack of habitual offending. Given that the applicant had already served a substantial portion of the sentence, and in the interest of prison...
Source-derived case information.
- Citation
- [2020] KEHC 7124 (KLR)
- Parties
- Applicant: Joseph Omondi Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 37 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; remainder of prison term suspended with conditions
- Judges
- RE Aburili
- Legal Topics
- Sentencing Principles, Possession of Narcotics, Cultivation of Narcotics, Mitigation, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Omondi Owino
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was lawful and appropriate in the circumstances.
- 2 Whether the trial court erred by not calling for a probation report before sentencing the applicant.
- 3 Whether the applicant should benefit from a suspended sentence due to time already served and prison decongestion measures.
Ratio Decidendi
The court found that although the sentence imposed was lawful, the trial court should have considered a probation report in light of the applicant's mitigation and lack of habitual offending. Given that the applicant had already served a substantial portion of the sentence, and in the interest of prison decongestion, the court exercised its discretion to suspend the remainder of the sentence, warning the applicant not to reoffend within six months of release, failing which he would serve the balance of the prison term.
Court Disposition
sentence revised; remainder of prison term suspended with conditions
Orders
- The remainder of the applicant's prison term is suspended.
- The applicant is warned not to reoffend or commit any other offence within six months from the date of release, breach of which he shall be sent back to prison to complete the term.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION NO. 37 OF 2020
(CORAM: R. E. ABURILI - J.)
JOSEPH OMONDI OWINO....APPLICANT
VERSUS
REPUBLIC........................... RESPONDENT
(Being an Application for revision of sentence vide Senior Resident Magistrate’s Court, Ukwala Criminal Case No. 434 of 2019 dated 14. 10. 2019 before Hon. C.N. Sindani, Senior Resident Magistrate)
RULING
1. The convict Joseph Omondi Owino was convicted on his own plea of guilty and sentenced to a fine of Kshs. 100,000/= in default to serve one year imprisonment on each of the two counts of being found in possession of 30 grams of bhang and cultivating 12 trees (plants of cannabis sativa). The one year imprisonment is concurrent sentence rendered on each of the two counts. The sentence is lawful. In mitigation, he stated that he prayed for forgiveness as he has children.
2. There was no record to show that he was a habitual offender although cultivation of the narcotics is a serious offence.
3. Nonetheless, following his mitigation, the trial court should have called for a probation report to guide in meting out appropriate sentence.
4. The convict was granted bail pending trial but he could not afford the same even after the bond terms were revised downwards. He was arrested on 17/7/2019 and as the exhibits had not be taken to the government chemist for analysts to determine whether they were narcotics, the sentencing was done on 14/10/2019 which was about three months after arrest. He has now been in prison for about 8 months inclusive of the period served in remand.
5. The convict has served substantial part of the one year prisons term. He can benefit from prison decongestions. I therefore exercise judicial discretion and order that the convict Joseph Omondi Owino shall serve the remainder of the prison term on suspended sentence and warned not to reoffend or commit any other offence within the next six months from the date of release breach of which he shall be send back to prison to complete the prison term.
6. Orders accordingly.
Dated, signed and delivered at Siaya, this 19th Day of March 2020.
R.E. ABURILI
JUDGE