[2025] KEHC 10553 (KLR)

Lochok v Republic (Criminal Revision E107 of 2025) [2025] KEHC 10553 (KLR) (22 July 2025) (Ruling)

Neutral citation: [2025] KEHC 10553 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E107 of 2025

RN Nyakundi, J

July 22, 2025

Between

James Echakan Lochok

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was charged with the offence of neglect to prevent a felony. The brief facts are on the 20th day of December 2024 at Eldoret city in Turbo sub county within Uasin Gishu County, James Echakan Lochok being a watchman entitled to guard the shop of James Kimani Waiguru, failed to use all reasonable cause to prevent the commission of an offence namely theft.

2. He pleaded guilty to the offence, was convicted and sentenced to serve two years’ imprisonment. He has now applied for his sentence to be reviewed and the reminder of the sentence of 10 months to be converted to community service.

Analysis and Determination 3. This application is based on the provisions of the criminal procedure code namely Section 357, 362, 364 as read with 382. The constitution also provides under Art 50 (2) (p) (q) as follows:(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishments for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.(3)if this Article requires information to be given to a person, the information shall be given in language that the person understands.

4. The same constitution in Art 50 (6) (a) (b) expressly states as follows:A person who is convicted of a criminal offence may petition the High Court for a new trial if-a.The person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; andb.new and compelling evidence has become available.

5. This application is based on the social inquiry report dated 21st July 2025 carried out by the probation officer which contextualized the issues as follows:Sources of information prison records, inmate families, community and the complainantCurrent Home And Personal CircumstancesThe inmate is 63 years old. He is a resident of Kapyemit location, Turbo sub-county in Uasin Gishu County.He is the son of John Lochok who is elderly and the late Rebecca Kademo. He is the last born in a family of 6 siblings but all of them are deceased safe for the inmate. The inmate was married to the late Jane Ekai and has 2 children. 1st born - Peter Edung who is a herdsman in Turkana and 2nd born - Anna Ekai who is a housewife. He attended Kornyang primary school where he sat for his class seven examinations. He later ventured into casual labor and was working as a security guard at the time of his arrest. He has a fixed place of abode at Kapyemit LocationPrison Assessment, Rehabilitation, And Re-integrationThe inmate is involved in managing a Kitchen garden and has been trained in tree planting at the prison. Prison records indicate that the inmate is fit for release. The local administrators are not against the inmate serving his remaining sentence in the community. The family and community are willing to be part of his rehabilitation.Offenders Attitude Towards Non-custodial MeasuresThe inmate is remorseful and takes responsibility for his offence. He looks forward to help in conserving the environment in the community. He requests to be allowed to serve the remaining period in the community.RecommendationsMy Lord, the inmate is remorseful, has a fixed place of abode, and the home and community environment are favorable for his rehabilitation. His sentence can be reviewed and be placed on probation orders for a period of ten months. During this period, we shall endeavor to offer him guidance and counseling on positive life skills and ensure that he abides by the conditions of the Probation order.

6. The role of non-custodial sentence should underpin our penal system in which custodial sentence remains a recourse of last resort in punishing offenders. The sentence policy guidelines of the judiciary 2023 provides a framework in which Judicial discretion should be exercised to arrive at a fair and proportionate sentence on individualized circumstances. The objectives and principles of sentencing are well articulated and defined as follows:a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.d.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.e.Community protection: to protect the community by incapacitating the offender.f.Denunciation: to communicate the community’s condemnation of the criminal conduct.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society.

7. In a documented research by Chrispinus Adenya Aben entitled Factors Influencing Success of Non-Custodial Sentence in Kenya: A Case of Kilifi District in Kilifi County 2011. He made the following observations: First and foremost, prison population around the world is increasingly placing enormous financial burdens on governments. There is growing recognition that imprisonment does not achieve some of its most important stated objectives, as well as being harmful to offenders, families and in the long term to the community (UNODC, 2006).

8. It came out clearly from his research; Supervision is an essential component of community based correction with the primary objective of enforcing compliance with the conditions of release to minimize risk to the public and to re-integrate the offender into the law abiding lifestyle. Lax supervision and failure to deal firmly with those who persistently violate the terms of release can bring an entire system into disrepute in criminal justice. (Killinger GG and Cromwell P.F, 1990). “The law is without doubt a remedy for great evils, yet it brings with it evils of its own”. (Subbrano V.C.G. 1993). There are three primary gateways in the criminal justice. The first is at the police at the initial stage of apprehension, the second is at the court after the determination of guilt and passing of a sentence and the third is the gateway to the community at the conclusion of the sentence (Johnson R, 2003).

9. Rule 8. 2 of the Tokyo rules on non-custodial affirm that courts or sentencing authorities may dispose off cases in any of the following ways-verbal sanctions, admonitions, reprimands and warning, conditional discharge, status penalty, economic sanctions and monetary restitution, restitution to the victim or compensation order, confiscation or expropriation, suspended or deferred sentence, probation and judicial supervision, community service order, house arrest and any other non-institutional treatment. Supervision is critical in realization of sentencing objectives. This is operationalized as poor and laxed supervision leads to reconviction and abscondism. The quality and number of contacts between the offender are key in reforming, re-integrating the offender. The caseload per officer and the frequency of contacts between the officer and the probationer determines the level of intensity of supervision based on the risk category of the probationer. The community plays key role in having offenders change. Community attitude, home environment is deterministic of offender’s potential to change.

10. Time has come to re-conceptualize the effectiveness of custodial sentencing to promote a clear, fair, uniform and consistent approach by all levels of courts. A theme of any review of sentence must not lose sight of the objectives and sentencing. Am of the consider view that an effective sentence must also serve to communicate to society that justice has been done and the wrong doer punished and denounced for his or her conduct. Generally speaking, over time I have been involved in the practice of law as a trier of criminal cases there is no probative evidence that the harsher, punitive or severe the sentence does provide greater marginal deterrent effects.

11. In the instance case, I am hopeful that the review of custodial sentence and substitution of it with that of community service will contribute towards promoting the domain of non-custodial sentence. The sentencing recommended by probation officer is that of 10 months being the balance of the custodial sentence. Orders accordingly.

DELIVERED, DATED AND SIGNED AT ELDORET VIA CTS THIS 22ND JULY 2025. ………………………………………R. NYAKUNDIJUDGE