[2023] KEHC 18268 (KLR)
The court found that although the amount stolen was substantial and the original fine was lenient, the applicant was a first offender and had already served nearly five months of her one-year custodial sentence. The trial court did not order a Presentence Report to assess suitability for a non-custodial sentence. In...
Source-derived case information.
- Citation
- [2023] KEHC 18268 (KLR)
- Parties
- Applicant: Sarah Awino Ochieng Alias Delvin; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E161 of 2022
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- sentence varied; custodial sentence substituted with community service order
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Stealing Offence, Penal Code Section 275, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Awino Ochieng Alias Delvin
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the sentence imposed on the applicant for the offence of stealing was appropriate in light of the circumstances.
- 2 Whether the applicant should be granted a non-custodial sentence considering her status as a first offender and her mitigation.
Ratio Decidendi
The court found that although the amount stolen was substantial and the original fine was lenient, the applicant was a first offender and had already served nearly five months of her one-year custodial sentence. The trial court did not order a Presentence Report to assess suitability for a non-custodial sentence. In the interest of prison decongestion and considering the applicant's personal circumstances, the High Court substituted the remaining custodial sentence with a three-month community service order at Winam Law Courts under probation supervision.
Court Disposition
sentence varied; custodial sentence substituted with community service order
Orders
- The applicant Sarah Awino Ochieng alias Delvin shall be released from prison to serve three months community service at Winam Law Courts under the supervision of the Probation Officer, Winam.
- Signal to issue.
Full Case Text
Judgment text and source record
25 paragraphs
Ochieng Alias Delvin v Republic (Criminal Revision E161 of 2022) [2023] KEHC 18268 (KLR) (27 April 2023) (Ruling)
Neutral citation: [2023] KEHC 18268 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E161 of 2022
RE Aburili, J
April 27, 2023
Between
Sarah Awino Ochieng Alias Delvin
Applicant
and
Republic
Respondent
Ruling
1. This is a request for sentence review which I have considered. The applicant Sarah Awino Ochieng alias Delvin was convicted of the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code.
2. She was convicted and sentenced to pay a fine of Kshs.20,000/= or in default, to serve one (1) year imprisonment.
3. This was on 9th December 2022 by Winam Senior Principal Magistrate’s Court Criminal Case No. E1032 of 2021. The value of the stolen cash is Kshs.179,000/= from an Mpesa shop.
4. The accused denied the offence and the case proceeded to hearing on merit.
5. The amount of money lost was by no means substantial. The accused at one time sought for an out of court settlement which never materialized. A fine of Kshs.20,000/= was lenient considering the amount of money lost.
6. In my view, the accused deserves a harsher sentence. However, she was a first offender and in her mitigation, she stated that he had a young child. The trial court did not order for a Presentence Report to rule out the suitability of the accused for a non-custodial sentence.
7. The accused has already served nearly five (5) months of the one (1) year imprisonment.
8. In the spirit of prison decongestion, I hereby order that the Convict Sarah Awino Ochieng alias Delvin shall be released from prison to serve Community Service for three (3) months at Winam Law Courts, under the supervision of the Probation Officer, Winam.
9. Signal to issue
10. File closed. I so order.
Dated, Signed and Delivered at Kisumu this 27th Day of April, 2023R. E. ABURILIJUDGE