[2024] KEHC 10933 (KLR)
The court found that the applicant, convicted of sexual assault of a four-year-old and sentenced to ten years imprisonment, had not demonstrated genuine remorse as required for consideration under the decongestion exercise. The probation report concluded that the applicant's expressions of remorse were not sincere...
Source-derived case information.
- Citation
- [2024] KEHC 10933 (KLR)
- Parties
- Applicant: Hippalus Mbasu Lei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 205 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Non Custodial Sentence Under Decongestion Exercise
- Outcome
- application for non-custodial sentence declined; applicant to serve sentence to completion
- Judges
- DR Kavedza
- Legal Topics
- Sexual Offences, Sentencing Policy, Non Custodial Sentences, Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hippalus Mbasu Lei
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Non Custodial Sentence Under Decongestion Exercise
Legal Issues
- 1 Whether the applicant qualifies for a non-custodial sentence under the Chief Justice's decongestion memo.
- 2 Whether the applicant has demonstrated genuine remorse sufficient to warrant early release.
- 3 Whether the gravity of the offence and the vulnerability of the victim preclude the grant of a non-custodial sentence.
Ratio Decidendi
The court found that the applicant, convicted of sexual assault of a four-year-old and sentenced to ten years imprisonment, had not demonstrated genuine remorse as required for consideration under the decongestion exercise. The probation report concluded that the applicant's expressions of remorse were not sincere and that he was unsuitable for a non-custodial sentence. Given the gravity of the offence, the vulnerability of the victim, and the lack of genuine contrition, the court held that justice would not be served by granting early release. The application for a non-custodial sentence was therefore declined, and the applicant was ordered to serve his sentence to completion.
Court Disposition
application for non-custodial sentence declined; applicant to serve sentence to completion
Orders
- The application for a non-custodial sentence is declined.
- The applicant shall serve his sentence to completion.
Full Case Text
Judgment text and source record
21 paragraphs
Lei v Republic (Criminal Revision 205 of 2024) [2024] KEHC 10933 (KLR) (17 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10933 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 205 of 2024
DR Kavedza, J
September 17, 2024
Between
Hippalus Mbasu Lei
Applicant
and
Republic
Respondent
Ruling
1. This file was brought before me for the decongestion exercise pursuant to the Chief Justice’s memo dated 7/12/2022, which provides that inmates who are serving three (3) years imprisonment or less, or those serving long sentences but have a balance of three (3) years or less may be considered for non-custodial sentences.
2. I have gone through the file and noted that applicant was convicted by the trial court for the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve ten (10) years imprisonment.
3. A probation report was filed with respect to the applicant indicating that he has served 5 years and 3 months. According to the said report, the inmate has been receptive to rehabilitation while in prison. However, despite the Applicant expressing remorse about committing the offence, he seemed not to be genuine, and was only expressing his remorse in order to earn favour in terms of being granted a non-custodial sentence. The Report further indicated that efforts to get the victim and the local area chief to get their sentiments were futile. The report concluded that the applicant is not suitable for a non-custodial sentence and that he should serve his sentence to completion.
4. Sexual offences are particularly sensitive matters, and without conclusive proof of genuine remorse, it becomes challenging to consider the applicant for early release. In this case, the victim was only four years old at the time of the offence, and even now, she remains a minor. The gravity of the offence, coupled with the applicant's apparent lack of sincere contrition, makes it difficult to justify granting a non-custodial sentence, as justice for such a vulnerable victim must be prioritized.
5. In line with the findings in the above report, it is my view that the applicant is not suitable to serve a non-custodial sentence. I therefore decline to release him under the decongestion exercise. The applicant shall serve his sentence to completion.
6. Orders accordingly.
RULING DELIVERED THIS 17TH DAY OF SEPTEMBER 2024. ...........................D. KAVEDZAJUDGE