[2020] KEHC 7131 (KLR)
The court found that the applicant, despite being a first offender in the instant case, was a habitual thief with a history of non-compliance with non-custodial sentences and a negative probation report. The trial court had considered all relevant factors, including mitigation and the pre-sentence report, before...
Source-derived case information.
- Citation
- [2020] KEHC 7131 (KLR)
- Parties
- Applicant: Josephat Otieno Okwaro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 17’B’ of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for sentence revision dismissed; original sentence upheld
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Habitual Offender, Pre Sentence Report, Mitigation, Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Otieno Okwaro
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant is suitable for sentence revision under Section 362 as read with Section 364 of the Criminal Procedure Code.
- 2 Whether the circumstances of the applicant warrant a reduction or alteration of the custodial sentence imposed.
Ratio Decidendi
The court found that the applicant, despite being a first offender in the instant case, was a habitual thief with a history of non-compliance with non-custodial sentences and a negative probation report. The trial court had considered all relevant factors, including mitigation and the pre-sentence report, before imposing a lenient one-year custodial sentence. The High Court held that the applicant was unsuitable for sentence revision or for benefiting from prison decongestion measures related to the COVID-19 pandemic, as his continued liberty would endanger the property and safety of the community. The application for revision was therefore declined and dismissed, and the original...
Court Disposition
application for sentence revision dismissed; original sentence upheld
Orders
- The request for sentence revision is declined and dismissed.
- The convict Josephat Otieno Okwaro to serve the lawful lenient prison term imposed by the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION NO. 17’B’ OF 2020
(CORAM: R. E. ABURILI - J.)
JOSEPHAT OTIENO OKWARO.....................................................APPLICANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
(Being an Application for revision of sentence vide Principal Magistrate’s Court, Siaya
Criminal Case No. 832 of 2019 dated 10. 9.2020 before Hon. L. Simiyu, Principal Magistrate)
RULING
1. Josephat Otieno Okwaro was convicted on his own plea of guilty by Siaya PM’s court in Cr. Case No 832/2019 and sentenced to serve 1 year imprisonment by Hon. L. Simiyu, PM on 10/9/2019. He has not appealed and this file is before me for revision of sentence under Section 362 as read with Section 364 of the Criminal Procedure Code.
2. Prior to his being sentenced, the trial court ordered for a Pre-sentence Probation Report which was filed and dated 10/9/2019 by Ochieng Ogolla which the trial court considered together with the mitigation and the fact that the accused was a first offender before sentencing him.
3. The trial court record shows that the stolen property being a basic stand, electrical power mortar and mortar clamp were recovered. Some other stolen property were not recovered. These were items from the workshop of the two Complainants in the charge sheet.
4. The convict is aged 44 years and is said to come from a well-educated family of responsible people but he is the outlier with wayward criminal tendencies. He has no dependants. The probation report reveals that the convict has the insatiable tendency, thirst and propensity to steal from people and his own family is tired of this behavior. He is unemployed and is unmarried.
5. The Assistant Chief of the area and members of the community say that the convict is a habitual thief who served prison sentence before being released and that he has been reported severally to have stolen from people only that he has not been apprehended. That when he was once released on non-custodial sentence, he did not comply with the conditions and he fled.
6. Having considered all the above circumstances, I am not persuaded that this kind of person needs to benefit from prison decongestion exercise occasioned by COVID-19 pandemic. The convict deserves to live behind bars for some time to protect the people’s property from those like the convict who derive pleasure in stealing and agonizing those who work so hard to eke a living.
7. Accordingly, I find the convict unsuitable for consideration for sentence revision. The request is declined and dismissed.
8. The convict Josephat Otieno Okwaro to serve the lawful lenient prison term imposed by the trial court for him to learn some life’s skills in prison and be rehabilitated and reformed before being released back into the society.
9. Orders accordingly.
Dated, signed and delivered at Siaya, this 19th Day of March 2020.
R.E. ABURILI
JUDGE