[2023] KEHC 23937 (KLR)
The court declined to revise the custodial sentence because the applicant lacked support structures in the community, the victim (his mother) was unwilling to receive him back, and the Probation Officer did not recommend a non-custodial sentence. The court found that releasing the applicant posed a risk to both...
Source-derived case information.
- Citation
- [2023] KEHC 23937 (KLR)
- Parties
- Applicant: Victor Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E079 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision of sentence declined; custodial sentence upheld
- Judges
- RE Aburili
- Legal Topics
- Sentencing Revision, Burglary Offences, Probation Reports, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant for burglary should be revised to a non-custodial sentence.
- 2 Whether the applicant's circumstances and community safety concerns justify maintaining the custodial sentence.
Ratio Decidendi
The court declined to revise the custodial sentence because the applicant lacked support structures in the community, the victim (his mother) was unwilling to receive him back, and the Probation Officer did not recommend a non-custodial sentence. The court found that releasing the applicant posed a risk to both himself and the community, given his criminal history and the community's hostility. The sentence was not found to be excessive or based on wrong principles. The applicant was advised that he may apply for review after serving three-quarters of his sentence, at which point a character and reformation report would be considered.
Court Disposition
application for revision of sentence declined; custodial sentence upheld
Orders
- The application for revision of sentence is declined.
- The applicant shall serve the four years imprisonment as imposed.
Full Case Text
Judgment text and source record
23 paragraphs
Odhiambo v Republic (Criminal Revision E079 of 2023) [2023] KEHC 23937 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23937 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E079 of 2023
RE Aburili, J
October 6, 2023
Between
Victor Odhiambo
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate Criminal Case No. E174 of 2023 at Maseno)
Ruling
1. Victor Odhiambo is a convict in Maseno Senior Principal Magistrate Criminal Case No E174 of 2023 where he was convicted and sentenced to serve four (4) years imprisonment out of which he has served only about five (5) months now, for the offence of Burglary contrary to Section 304(2) of the Penal Code.
2. The sentence was imposed on May 22, 2023. The offence was committed against the Convict’s mother who according to the Sentence Review Report filed on August 23, 2023, is not willing to receive him back and that the community does not want to see him since he is a known criminal offender. His criminal peers have since been lynched and that he is likely to face the same punishment if he is released on non-custodial. He has no support structures due to his criminal tendencies in the community.
3. At the time of his arrest, he was abusing heroine and other drug substances and despite undergoing some drug rehabilitation at the Methadone clinic at JOOTRH, he experienced severe withdrawal symptoms at the time of arrest but he has now stabilised.
4. The Probation Officer does not recommend non-custodial.
5. In the premises, I decline to revise the sentence imposed on the convict Victor Odhiambo who shall serve the four (4) years imprisonment. He may however apply for review after serving 3/4 of the said sentence and the prison authorities will file a character and reformation report on the convict for consideration by the court.
6. I so order.
7. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 6THDAY OF OCTOBER, 2023R. E. ABURILIJUDGE