[2024] KEHC 8294 (KLR)

Lemuya v Republic (Criminal Revision E118 of 2024) [2024] KEHC 8294 (KLR) (11 July 2024) (Ruling)

Neutral citation: [2024] KEHC 8294 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Revision E118 of 2024

RN Nyakundi, J

July 11, 2024

Between

Andrew Lemuya

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal code.

2. The applicant pleaded guilty to the offence and was convicted on his own plea of guilty. As a consequence, he was sentenced to a fine of fifteen thousand and in default 6 months 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) ofthe Constitution..

4. The applicant seeks a sentence review based on the sentence review report on record. The report is responsive. According to the report, the applicant is disciplined and he needs guidance on how to handle anger issues. The report indicated that the applicant is a 21-year-old married man who is at the start of settling his family and life. He is the family’s bread winner. With these facts, the probation officer recommended a community service order at Loima Primary School for a period of 3 months.

5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -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.

6. Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.

7. Having gone through the facts of the present case, the circumstances fit the legal framework of the Community Service Act as an alternative sentence to imprisonment. I am of the considered view that the circumstances of this case from the onset called for a non-custodial sentence to help the Applicant go through guidance and counselling on managing her anger issues. I believe a non-custodial sentence would be greatly benefit the applicant with proper guidance and counselling. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve a community service order for a period of three months at Loima Primary School. The probation officer has an obligation in ensuring that the applicant undergoes professional counselling to help her manage anger issues. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is to achieve the effectiveness of this non-custodial sentence and that any breach of any conditions by the applicant shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.

SIGNED, DATE AND DELIVERED AT LODWAR THIS 11THDAY OF JULY 2024. ...................R. NYAKUNDIJUDGE