[2020] KEHC 7127 (KLR)
The court found that the applicant, a first offender convicted on his own plea of guilty for malicious damage to property, had demonstrated remorse and maintained positive conduct in prison. Due to the COVID-19 pandemic, it was not possible to obtain a probation report, but a positive conduct report from the prison...
Source-derived case information.
- Citation
- [2020] KEHC 7127 (KLR)
- Parties
- Applicant: Justice Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 31 ‘A’ of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; remainder of custodial sentence suspended; applicant released with warning
- Judges
- RE Aburili
- Legal Topics
- Malicious Damage to Property, Sentencing Revision, Mitigation, Probation Reports, Covid19 Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justice 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 for malicious damage to property should be revised in light of mitigation and prevailing circumstances.
- 2 Whether the absence of a probation report due to COVID-19 restrictions affects the appropriateness of the sentence.
- 3 Whether the applicant's positive conduct and first offender status warrant suspension of the remaining sentence.
Ratio Decidendi
The court found that the applicant, a first offender convicted on his own plea of guilty for malicious damage to property, had demonstrated remorse and maintained positive conduct in prison. Due to the COVID-19 pandemic, it was not possible to obtain a probation report, but a positive conduct report from the prison was available. In the context of the pandemic and the need for prison decongestion, the court exercised its discretion to suspend the remainder of the applicant's custodial sentence and ordered his release, warning him not to reoffend within the next 12 months, failing which he would be recommitted to serve the remainder of the sentence.
Court Disposition
sentence revised; remainder of custodial sentence suspended; applicant released with warning
Orders
- The remainder of the prison term imposed on the applicant is suspended.
- The applicant Justine Owino is to be released from prison forthwith.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. 31 ‘A’ OF 2020
(CORAM: R. E. ABURILI - J.)
JUSTICE OWINO..........................APPLICANT
VERSUS
REPUBLIC.................................RESPONDENT
(Being an Application for revision of sentence vide Principal Magistrate’s Court, Bondo Criminal Case No. 86 of 2020 dated 13. 2.2020 before Hon. S. Mathenge, Resident Magistrate)
RULING
1. The convict and complainant are a couple. The convict was convicted on his own plea of guilty for the offence of malicious damage to property contrary to Section 339(1) of the Penal Code.
2. He mitigated saying he was remorseful and would not repeat the offence. No Probation report was called for prior to being handed 12 months imprisonment. He has since served 1½ of the 12 months imprisonment. He is a first offender, according to the trial court record.
3. I am unable to call for the Probation Report following the request for revision of sentence. This is due to the COVID-19 global pandemic making it impossible for the probation offices to access the inmates and other significant persons of interest in this matter for interviews.
4. I have however, upon request, received a general conduct report from Officer Incharge G.K. Prison at Siaya which is positive of the convict.
5. For the above reasons and in the spirit of prison decongestion at this time of the outbreak of COVID-19 virus, I hereby exercise judicial discretion and suspend the remainder of the prison term imposed on the convict and order for the release of the convict Justine Owino from prison and warn him not to reoffend for the next 12 months in default he shall be recommitted to complete sentence.
6. Orders accordingly.
Dated, signed and Delivered at Siaya, this 20th Day of March, 2020.
R.E. ABURILI
JUDGE