[2018] KEHC 2939 (KLR)
The court found that while the conviction and sentence were not challenged, the applicant's inability to pay the fine, her status as a first offender, her health condition (HIV positive), and her role as sole caregiver for her children and elderly grandmother constituted exceptional circumstances. The court...
Source-derived case information.
- Citation
- [2018] KEHC 2939 (KLR)
- Parties
- Applicant: M A O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 158 of 2018
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- sentence revised; custodial sentence substituted with community service order
- Judges
- RE Aburili
- Legal Topics
- Sentencing Review, Possession of Illicit Liquor, Community Service Orders, Mitigating Circumstances, Prison Congestion Policy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M A O
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the sentence imposed on the applicant should be revised in light of her personal circumstances and the prison congestion policy.
- 2 Whether community service is an appropriate alternative to the custodial sentence for the offence of possession of chang’aa.
Ratio Decidendi
The court found that while the conviction and sentence were not challenged, the applicant's inability to pay the fine, her status as a first offender, her health condition (HIV positive), and her role as sole caregiver for her children and elderly grandmother constituted exceptional circumstances. The court considered the Probation Officer’s report, which recommended economic empowerment and reintegration. In line with the prison congestion policy and the applicant’s need for continued medical care, the court determined that a community service order at Simenya Health Centre for three months was a more appropriate and humane sentence than continued imprisonment or an unpayable fine.
Court Disposition
sentence revised; custodial sentence substituted with community service order
Orders
- The applicant M A O shall be released from prison unless otherwise lawfully held.
- The applicant shall serve community service at Simenya Health Centre for a period of three months from the date of release.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
HC. CR. REV. NO. 158 OF 2018
(CORAM: R. E. ABURILI - J.)
M A O........................................................APPLICANT
VERSUS
REPUBLIC..........................................RESPONDENT
(Being an appeal against the sentence dated 24. 09. 2018 in
Criminal Case No. 567 of 2018in UKWALA Law
Courtbefore Hon. G. Adhiambo - SRM)
RULING ON SENTENCE REVIEW
The Applicant, M A O is aged 38 years. She was convicted and sentenced to a fine of Kshs. 83,000/= in default to serve 6 months and 45 days in prison for the offence of being found in possession of chang’aacontrary to the provisions of the Liquor Act; vide Ukwala SRM Cr. Case No. 567 of 2018. She has not challenged the conviction and sentence.
She however, pleads with this Court for revision of her sentence for reasons that she is a first offender, she is a mother of 4 children who solely depend on her, she is sickling and HIV positive living on ARVs hence jail term will harm her health.
On 30/10/2018, I ordered for a sentence review report from the Probation Officer, Siaya. The same was filed on 12/10/2018 by Rhoda Wanyonyi, Probation Officer.
According to the Probation Officer’s Report, the convict was sentenced on 24/9/2018 and is to end her sentence on 23/2/2019.
She is a widow to the Late Joseph Omondi. She has 4 children. She is HIV positive living on ARVs and sickly.
The convict needs economic empowerment and reintegration with guidance and counseling on strategic interventions required for her. She is said to be humble and hardworking person committed to her family of 4 children and her elderly grandmother. Her husband died in 2007. She is remorseful and regrets the offence.
I have considered the Probation Officer’s Sentence Review Report. I observe that the conviction and sentence meted out on the Convict/Applicant are not challenged. However, the Convict appears to be a woman of straw and therefore raising Kshs. 83,000/= fine is a pipedreams for her.
Nevertheless, the Applicant must know that there are alternative legal businesses which she can do to eke a living and fend for her dependants and seek medical treatment for her HIV/AIDS status.
Therefore, I shall only consider the plea in line with Prison Congestion Policy and order that the Applicant/Convict M A O shall be released unless otherwise lawfully held, to serve Community Service at Simenya Health Centre where she can also obtain her medication. She will serve for a period of three months from the date of her release from prison.
Orders accordingly.
Dated, Signed and Delivered at SIAYA this 15th Day of October 2018.
R.E. ABURILI
JUDGE
In the presence of:
Mr. Okach: Prosecution Counsel for the State
Millicent Atieno Oluoch: Applicant in person (present)
Court Assistant: Brenda, Modestar