[2023] KEHC 23874 (KLR)
The court found that the applicant, having pleaded guilty to possession of suspected stolen goods and being a habitual offender with no fixed abode or family support, was unsuitable for a non-custodial sentence. The presentence and probation reports did not recommend community-based rehabilitation. The court held...
Source-derived case information.
- Citation
- [2023] KEHC 23874 (KLR)
- Parties
- Applicant: Felix Kwawe Otieno Alias Felo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E065 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 Principles, Possession of Stolen Property, Plea of Guilty, Non Custodial Sentences, Habitual Offender Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Kwawe Otieno Alias Felo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant is suitable for a non-custodial sentence given his background and the presentence report.
- 2 Whether the sentence imposed by the trial court should be revised at this stage.
Ratio Decidendi
The court found that the applicant, having pleaded guilty to possession of suspected stolen goods and being a habitual offender with no fixed abode or family support, was unsuitable for a non-custodial sentence. The presentence and probation reports did not recommend community-based rehabilitation. The court held that the custodial sentence was appropriate for the applicant's rehabilitation. The court declined to revise the sentence at this stage but allowed for the possibility of review after two years, contingent on evidence of reformation and a favorable character report from the prison authorities.
Court Disposition
Application for revision of sentence declined; custodial sentence upheld.
Orders
- The application for revision of sentence is declined.
- The applicant shall remain in prison for rehabilitation for a period of two years, after which he may apply for review of his sentence subject to a favorable character report.
Full Case Text
Judgment text and source record
24 paragraphs
Otieno alias Felo v Republic (Criminal Revision E065 of 2023) [2023] KEHC 23874 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23874 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E065 of 2023
RE Aburili, J
October 6, 2023
Between
Felix Kwawe Otieno Alias Felo
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Chief Magistrate Criminal Case No. E086 of 2023 at Kisumu)
Ruling
1. The Convict herein Felix Kwawe Otieno is serving three (3) years imprisonment for the offence of possession of suspected stolen goods namely two mobile phones Infinix Hot and Safaricom Neon.
2. He was convicted on his own plea of guilty on February 28, 2023 vide Kisumu Chief Magistrate Criminal No. E086 of 2023. His is 23 years old. He is said to be a habitual offender and that he stole cattle but the owner forgave him. He lives alone after leaving his home in Homabay and so he has no fixed abode. He pleaded guilty to the charge.
3. The Presentence report filed in court on February 27, 2023 did not recommend non-custodial sentence. He is unmarried and has no close family ties. He had a difficult upbringing with his father after his mother died and his father remarried.
4. The Probation Officer does not recommend non-custodial sentence although the convict is remorseful and his uncle pleaded that he be treated with leniency as he was ready to aid him in the rehabilitation and reintegration. His father is an alcoholic, and that the convict needs to be rehabilitated in prison because he is reported to be a habitual offender.
5. As the convict is unsuitable for non-custodial sentence, he will remain in prison for rehabilitation for a period of two (2) years upon which he can apply for review of his sentence if he will have reformed and depending on the character report filed by the Officer in-charge Prison, the court will consider revising the sentence.
6. I decline to revise the sentence imposed at this stage.
7. This file is closed.
8. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 6TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE