[2024] KEHC 5662 (KLR)
The court found that the applicant, having pleaded guilty, shown remorse, and demonstrated positive change during his period in custody, was a suitable candidate for a non-custodial sentence. The probation report supported this assessment, recommending a community service order. Applying the principle of...
Source-derived case information.
- Citation
- [2024] KEHC 5662 (KLR)
- Parties
- Applicant: Lopeyok Lokupura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Lodwar
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E101 of 2024
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- sentence reviewed; applicant to be released unless otherwise lawfully held
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Review, Assault Bodily Harm, Community Service Orders, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lopeyok Lokupura
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the custodial sentence imposed on the applicant should be reviewed in light of the probation report and the applicant's remorsefulness.
- 2 Whether the applicant qualifies for a non-custodial sentence under the Community Service Orders Act.
Ratio Decidendi
The court found that the applicant, having pleaded guilty, shown remorse, and demonstrated positive change during his period in custody, was a suitable candidate for a non-custodial sentence. The probation report supported this assessment, recommending a community service order. Applying the principle of proportionality and considering the factors outlined in sentencing guidelines, the court determined that the custodial sentence should be reviewed to the period already served. The applicant was therefore ordered to be released unless otherwise lawfully held.
Court Disposition
sentence reviewed; applicant to be released unless otherwise lawfully held
Orders
- The applicant's sentence is reviewed to the period already served.
- The applicant is at liberty unless otherwise unlawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
Lokupura v Republic (Criminal Revision E101 of 2024) [2024] KEHC 5662 (KLR) (17 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5662 (KLR)
Republic of Kenya
In the High Court at Lodwar
Criminal Revision E101 of 2024
RN Nyakundi, J
May 17, 2024
Between
Lopeyok Lokupura
Applicant
and
Republic
Respondent
(Being Review on Sentence from the Decision on Cr. Case No. E352 of 2023 by C.A Mayamba (SPM) on 31. 8.2023)
Ruling
Representation:Mr. Jonathan K.Bungei for the State 1. The applicant was charged with the offence of assault causing bodily harm contrary to section 251 of the Penal Code. He also faces an alternative charge of creating disturbance in a manner likely to cause a breach of peace contrary to section 95(1)(b) of the Penal Code.
2. The applicant pleaded guilty to the offence before Hon. C.A Mayamba on 5th September, 2023 and as a consequence, he was convicted on his own plea of guilty and sentenced to 1 year imprisonment on the first count and six months imprisonment on the second count
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 sentence review report on record. The report is responsive. The report indicates that for the period he has been in custody, he has changed a lot and he now a disciplined person. He is remorseful and regrets committing the offence. He prayed that the court be lenient and consider a non-custodial sentence. The probation officer recommended a CSO for the remaining period at the township chief’s office.
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 this case, I am satisfied that applying the principal of proportionality, the Applicant’s sentence be reviewed to the period already served. He is at liberty unless otherwise unlawfully held
SIGNED, DATE AND DELIVERED AT LODWAR THIS 17TH DAY OF MAY 2024. ......................R. NYAKUNDIJUDGE