[2024] KEHC 6619 (KLR)
The court found that the applicant, having served only three months of a three-year sentence for stealing, was not suitable for a full non-custodial sentence at this stage. The probation report was not favorable, and there were no compelling reasons to depart from the custodial sentence. However, applying the...
Source-derived case information.
- Citation
- [2024] KEHC 6619 (KLR)
- Parties
- Applicant: Brian Kiplagat; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E135 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- Application for full non-custodial sentence denied; custodial sentence varied to blended sentence.
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Review, Probation Reports, Plea of Guilty, Custodial Vs Non Custodial, Proportionality in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Kiplagat
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to a review of his custodial sentence based on the probation report.
- 2 Whether the circumstances justify substitution of the custodial sentence with a non-custodial or blended sentence.
Ratio Decidendi
The court found that the applicant, having served only three months of a three-year sentence for stealing, was not suitable for a full non-custodial sentence at this stage. The probation report was not favorable, and there were no compelling reasons to depart from the custodial sentence. However, applying the doctrine of proportionality and considering the objectives of deterrence and rehabilitation, the court determined that a blended sentence was appropriate. The applicant was ordered to serve nine months imprisonment, followed by two years on probation, balancing both punitive and rehabilitative aims.
Court Disposition
Application for full non-custodial sentence denied; custodial sentence varied to blended sentence.
Orders
- Applicant to serve nine (9) months imprisonment.
- Upon completion of custodial term, applicant to serve two (2) years on probation.
Full Case Text
Judgment text and source record
23 paragraphs
Kiplagat v Republic (Criminal Revision E135 of 2024) [2024] KEHC 6619 (KLR) (7 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6619 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Revision E135 of 2024
RN Nyakundi, J
June 7, 2024
Between
Brian Kiplagat
Applicant
and
Republic
Respondent
Ruling
Representation:Mark Mugun for the state 1. The applicant was charged with the offence of stealing contrary to section 268 as read with section 275 of the Penal Code.
2. The applicant pleaded guilty to the offence before Hon. P. Areri on 31st January, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to serve 3 years imprisonment.
3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) as conjunctively read with Article 50(6)(a)&(b) of the Constitution.
4. The applicant seeks a sentence review based on the probation report dated 28th March, 2024. The probation officer’s report indicates that the applicant is remorseful and prayed for a non-custodial sentence. However, the probation officer proposed that the Applicant is not suitable for a non-custodial sentence given that he has served only 3 months out of the three-year sentence. I couldn’t agree more. I have not had sight of any compelling reasons to consider the applicant for a non-custodial sentence.
5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -
6. a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.
7. Upon perusal of the probation report, the same is not favorable and I am inclined to deny the application at the moment. Having taken into account the circumstances of the case and the fact that the applicant has not served a considerable part of his sentence, I am of the considered opinion that a sentence combining both custodial and non-custodial sentence will achieve the objective of both deterrence and rehabilitation.
8. Having taken further into account the doctrine of proportionality in sentence and the fact that the applicant has a balance of 2 years and 9 months, I have come to the logical conclusion that the sentence should be served as follows: -(a)Nine (9) months imprisonment to act as deterrence and retribution.(b)Two (2) years thereafter on probation for rehabilitation and placement of the convict into society.
SIGNED, DATE AND DELIVERED AT ELDORET THIS 7TH DAY OF JUNE 2024. ............................R. NYAKUNDIJUDGE