[2023] KEHC 23875 (KLR)
The court found that the applicant was unsuitable for a non-custodial sentence due to his lack of remorse, poor family ties, prior conviction, ongoing criminal proceedings, and negative community attitude towards his release. The sentence imposed by the trial court was lawful and appropriate in the circumstances....
Source-derived case information.
- Citation
- [2023] KEHC 23875 (KLR)
- Parties
- Applicant: Albert Kabala Omunana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E059 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application for sentence revision declined; applicant to serve full term
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Theft Offences, Recidivism, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Kabala Omunana
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the applicant is suitable for a non-custodial sentence or revision of the custodial sentence imposed by the trial court.
- 2 Whether the applicant's prior criminal record and lack of remorse affect eligibility for sentence revision.
Ratio Decidendi
The court found that the applicant was unsuitable for a non-custodial sentence due to his lack of remorse, poor family ties, prior conviction, ongoing criminal proceedings, and negative community attitude towards his release. The sentence imposed by the trial court was lawful and appropriate in the circumstances. There was no miscarriage of justice or compelling reason to revise the sentence. The applicant is to serve the full custodial term as imposed.
Court Disposition
application for sentence revision declined; applicant to serve full term
Orders
- The application for revision of sentence is declined.
- The applicant shall serve the full term of imprisonment as imposed by the trial court.
Full Case Text
Judgment text and source record
27 paragraphs
Omunana v Republic (Criminal Revision E059 of 2023) [2023] KEHC 23875 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23875 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E059 of 2023
RE Aburili, J
October 6, 2023
Between
Albert Kabala Omunana
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate Criminal Case No. E298 of 2022 at Tamu))
Ruling
1. The Convict herein is Albert Kabala Omunana. He is serving two (2) years imprisonment imposed in Tamu SPM Criminal Case No. E298 of 2022. He is 42 years old.
2. He was accused of theft of Motor Vehicle parts valued at Kshs.265,000/=, the property of Opel Caleb Kutayi. He pleaded not guilty and the case proceeded to full hearing.
3. He was arrested on 29th November 2022 and remanded in custody until he was convicted and sentenced on 19th June 2023 which was a period of eight (8) months.
4. A Presentence report filed in court by the Probation Officer showed that the convict had no remorse and that he had no permanent abode. That he had bad company and the community was against his release. He did not provide his family contact for an interview. He could not take responsibility for his actions.
5. In the current Sentence Review Report filed on 18th August 2023, the convict whose sentence expires on 18th June 2025 originates from Vihiga County, Emuhaya Sub-county, Emusire Sub-location.
6. That he has poor family ties and was previously convicted and has another ongoing criminal case Criminal Case No. E295 of 2022 charged with Burglary and stealing. The last time the matter was due for hearing in Tamu Court was on 6th September 2023.
7. It is reported that he has endeered himself to criminality and that the community is hostile towards the possible release. He has served prison before. Despite his age, he does not demonstrate signs of reforming.
8. As the convict is unsuitable for non-custodial sentence and he is in lawful custody in another criminal case, I decline to revise his sentence as imposed by the trial court.
9. The convict to serve full term.
10. I so order
11. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 6TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE