[2024] KEHC 5667 (KLR)

Lopetet v Republic (Criminal Revision E078 of 2024) [2024] KEHC 5667 (KLR) (17 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5667 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Revision E078 of 2024

RN Nyakundi, J

May 17, 2024

Between

Abdi Lopetet

Applicant

and

Republic

Respondent

(Being Review on Sentence from the Decision in Cr. E362 of 2022 by N.Idagwa (SRM) ON 29. 8.2021)

Ruling

1. The applicant was charged with the offence of Burglary contrary to section 304(2) as read with section 279(b) of the Penal Code. He also faced an alternative charge of handling stolen goods contrary to section 322(1)(2) of the Penal Code.

2. The applicant pleaded guilty to the offence before Hon. N.M. Idagwa on 30th August, 2022 and as a consequence, he was convicted on his own plea of guilty and sentenced to 5 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 sentence review report on record. The report is responsive. According to the prison authorities, the applicant has been participating in spiritual gatherings and this has really helped him realize the importance of being with good company. It is reported that he has been participating in industry and he has been doing building and construction work and he has acquired skills, which will help him to participate in masonry work if given a chance to come out of prison. The probation officer stated that the applicant is remorseful, ready and willing to serve a non-custodial sentence if given a chance by the court. The report recommended that the applicant be placed on a Community service Order at Lokichar girls primary.

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.Turning to the issue of sentence the court wants to remind itself and the Lower Court that sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender. The constitution 2010 also enacted Article 25 (a) dealing with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence. In some also as a matter of principle in sentencing any verdict, sanction or punishment must be proportionate to the crime for which the accused person has been convicted. It is also clear from the objectives and principles of sentencing, that the accused being a first offender or has entered a plea of guilty to the offence should count for something to reduce his or her sentence. Generally, for first offenders, it is very unlikely that if they are placed on non-custodial sentence they would be re-offending hence impacting negatively public law and order in our communities. The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8. 1 &8. 2 (a-m) which provide inter-alia Verbal sanctions, such as admonition, reprimand and warning

Conditional discharge

Status Penalties

Economic sanction and donentary penalties, such as fines and day-fines

Confiscation or an expropriation order

Restitution to the victim or a compensation order

Suspended or differed sentence

Probation and judicial supervision

A community service order

Referral to an attendance center

House arrest

Any other mode of non-institutional treatment, or

Some combination of these measures.

Just as the offender’s person need and interests have to be weighed against society’s interest at the pre-trial stage, so the offenders “rehabilitative needs” at the sentencing stage must be balanced against eh need to protect society and “the interests of the victim the list of non-custodial measures in Rule 8. 2 while not exhaustive, contains a wide range of non-custodial measures to suit different circumstances and achieve different objectives

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. The analysis of the facts in this instant case and the charge in question in my view are a perfect fit under the legal framework of the Community Service Act as an alternative sentence to imprisonment. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve the remainder of his sentence at the Lokichar girls’ primary school. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is 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 17TH DAY OF MAY 2024. In the Presence of:Mr. Jonathan K. Bungei for the StateAppellant.............................R. NYAKUNDIJUDGE