[2022] KEHC 12827 (KLR)
The court found that, despite the applicant's negative Presentence report, the positive behaviour change observed by prison authorities and the recommendation for community service in the Sentence Review Report justified a non-custodial sentence. The court emphasized the need for prison decongestion and...
Source-derived case information.
- Citation
- [2022] KEHC 12827 (KLR)
- Parties
- Applicant: Brian Otieno Ongala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E038 of 2022
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- Sentence reviewed; custodial sentence substituted with community service order.
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Community Service Orders, Plea of Guilty, Stealing Offence, Penal Code Section 275
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Otieno Ongala
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the applicant's custodial sentence should be reviewed and substituted with a non-custodial sentence.
- 2 Whether the applicant is suitable for community service given his criminal history and the recommendations of the probation and prison authorities.
Ratio Decidendi
The court found that, despite the applicant's negative Presentence report, the positive behaviour change observed by prison authorities and the recommendation for community service in the Sentence Review Report justified a non-custodial sentence. The court emphasized the need for prison decongestion and rehabilitation of young offenders. The applicant was therefore released from prison and placed on a 12-month community service order, with strict supervision and the condition that any breach would result in the reinstatement of the original custodial sentence.
Court Disposition
Sentence reviewed; custodial sentence substituted with community service order.
Orders
- The applicant shall be released from prison forthwith.
- The applicant shall serve 12 months of unpaid community service at Utonga Chief's Camp.
Full Case Text
Judgment text and source record
24 paragraphs
Ongala v Republic (Criminal Revision E038 of 2022) [2022] KEHC 12827 (KLR) (8 August 2022) (Ruling)
Neutral citation: [2022] KEHC 12827 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Revision E038 of 2022
RE Aburili, J
August 8, 2022
Between
Brian Otieno Ongala
Applicant
and
Republic
Respondent
((Being an Application seeking sentence review, arising from conviction and sentence in Bondo PM Magistrates’ Court Criminal Case No. E046/2022 by Hon. J.P. Nandi, Principal Magistrate on 5/4/2022))
Ruling
1. The convict Brian Otieno Ongala was convicted on his own plea of guilty for the offence of Stealing contrary to Section 268 as read with Section 275 of the Penal Code and sentenced to serve two (2) years imprisonment on 22/3/2022. He has served about 4 months in prison. The value of the stolen property being an engine for a boat is Kshs. 190,000/=.
2. The Presentence report was negative on the convict being given non-custodial sentence because he is a perennial thief and that his family and the community was unwilling to accommodate him for being a perennial thief.
3. In the Sentence Review Report filed on 2/8/2022, the same Probation Officer Leakey Lugalia recommends community service.
4. I have considered the two reports.
5. The convict is a young man who is 23 years, healthy and energetic. He has been in prison for 4 months. He seeks for leniency and promises to change his behaviour. The prison authorities are positive about his behaviour change. He is willing to perform unpaid community service.
6. In the spirit of prison decongestion, I hereby order that the convict Brian Otieno Ongala shall be released from prison forthwith and placed on unpaid community service at Utonga Chief’s Camp for 12 months. He shall be closely supervised by the Chief, Utonga location who shall ensure the convict faithfully performs any assigned community service to his satisfaction and weekly reports made to the Probation Officer, Bondo who shall monitor the behaviour of the convict for the next 12 months and in the event of breach, the CSO order shall be recalled and cancelled and the convict returned to prison to serve the entire prison term imposed and not served.
7. File closed.
8. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 8TH DAY OF AUGUST, 2022R.E. ABURILIJUDGE