[2016] KEHC 7414 (KLR)
The court found that the Applicant had accepted his wrongdoing and demonstrated readiness to reform, as evidenced by the Probation Officer's Report. Given that only eight months remained on his custodial sentence, the court considered this a suitable period for conversion to a non-custodial sentence. The court...
Source-derived case information.
- Citation
- [2016] KEHC 7414 (KLR)
- Parties
- Applicant: Michael Adiedo Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 399 of 2015
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; custodial sentence substituted with probation
- Legal Topics
- Sentence Revision, Forgery, Stealing by Servant, Probation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Adiedo Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the custodial sentence imposed on the Applicant should be revised to a non-custodial sentence.
- 2 Whether the Applicant's circumstances justify conversion of the sentence to probation.
Ratio Decidendi
The court found that the Applicant had accepted his wrongdoing and demonstrated readiness to reform, as evidenced by the Probation Officer's Report. Given that only eight months remained on his custodial sentence, the court considered this a suitable period for conversion to a non-custodial sentence. The court exercised its discretion under Section 362 of the Criminal Procedure Code to substitute the remaining custodial sentence with a two-year probation period, supervised by a Probation Officer, finding this to be a just and appropriate response to the Applicant's circumstances and the interests of justice.
Court Disposition
application allowed; custodial sentence substituted with probation
Orders
- The custodial sentence is substituted with an order that the Applicant serves a two-year probation period under the supervision of Probation Officer Muturi Jane W. based at Nairobi Milimani Courts.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC.CRIMINAL APPLICATION NO. 399 OF 2015
MICHAEL ADIEDO OCHIENG..................................................APPLICANT
VERSUS
REPUBLIC............................................................................RESPONDENT
RULING
The original record of proceedings of the trial court has been forwarded to this court pursuant to Section 362 of Criminal Procedure Code so that this court can examine the record of the proceedings with a view to satisfying itself as to the correctness, legality or propriety of the sentence or order passed by the subordinate court.
The Applicant was charged vide Nairobi Chief Magistrate’s Court Criminal Case No. 2034 of 2009 with four counts of forgery contrary to Section 349 of the Penal Code and three counts of stealing by servant contrary to Section 281 of the Penal Code. He was convicted in all the eight counts and sentenced to two years imprisonment in respect of counts I, II and III and in counts IV to VII, four years imprisonment. All sentences were to run concurrently.
By way of Chamber Summons filed under a Certificate of Urgency on 16th November, 2015, the Appellant requested the court to revise the sentence and prefer against him a non-custodial sentence. He stated that he was in the process of finalizing his Masters Degree at Maseno University where he was undertaking a Degree in Research Methods. By the time of his conviction, he had paid school fees of Kshs. 66,000/= which he stood to lose if he did not continue with his studies.
The application was opposed by the learned counsel Ms. Atina. She submitted that the complainant bank being Barclays Bank where the Applicant worked lost Kshs. 26 million due to the theft by the Applicant. According to Ms. Atina, the sentence in respect of the offence of stealing by servant was lenient as the same attracted an imprisonment term of seven years. Furthermore, all the sentences were to run concurrently which was quite reasonable. Ms. Atina further told the court that the Applicant is in a position to study the Masters Degree online. She urged the court to dismiss the application.
This court requested for a Probation Officer’s Report which I have had a through look at. The same portrays the Applicant as a person who has accepted his mistake and is ready to reform and change his behaviour. As reflected by the report dated 16th February, 2015, the Applicant is ready to abide by the terms of non-custodial sentence. He only has eight months to complete his sentence which this court finds as suitable period for conversion into a non-custodial sentence. Accordingly, I allow the application. I substitute the custodial sentence with an order that the Applicant serves a two years probation period under the supervision of the Probation Officer one, Muturi Jane W. based at Nairobi Milimani Courts.
It is so ordered.
DATED and DELIVERED this 17th day of February, 2016.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Applicant in person
2. M/s Atina for the Respondent.