[2024] KEHC 6618 (KLR)
The court found that the offence of stealing, for which the applicant was convicted and sentenced to six months imprisonment, is suitable for a non-custodial sentence given the applicant's remorse, lack of criminal history, and the favorable probation report. The objectives of sentencing, including rehabilitation...
Source-derived case information.
- Citation
- [2024] KEHC 6618 (KLR)
- Parties
- Applicant: Daniel Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E128 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review
- Outcome
- Sentence reviewed; custodial sentence substituted with community service order for the remainder of the term.
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Review, Community Service Orders, Plea of Guilty, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review
Legal Issues
- 1 Whether the applicant is suitable for a non-custodial sentence under the Community Service Orders Act.
- 2 Whether the sentence of imprisonment should be reviewed in light of the probation report and applicant's circumstances.
Ratio Decidendi
The court found that the offence of stealing, for which the applicant was convicted and sentenced to six months imprisonment, is suitable for a non-custodial sentence given the applicant's remorse, lack of criminal history, and the favorable probation report. The objectives of sentencing, including rehabilitation and reintegration, are best served by allowing the applicant to serve the remainder of his sentence under community service orders at Obinjo Primary School. The court emphasized that any breach of the conditions of the community service order would result in the reversion to a custodial sentence.
Court Disposition
Sentence reviewed; custodial sentence substituted with community service order for the remainder of the term.
Orders
- The applicant shall serve the remainder of his sentence on community service order at Obinjo Primary School, Kisumu County.
- The Probation Officer at Obinjo Primary School shall supervise the applicant and file monthly reports in court.
Full Case Text
Judgment text and source record
22 paragraphs
Otieno v Republic (Criminal Revision E128 of 2024) [2024] KEHC 6618 (KLR) (7 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6618 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Revision E128 of 2024
RN Nyakundi, J
June 7, 2024
Between
Daniel Otieno
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code.
2. The applicant pleaded guilty to the offence before Hon. C. Kesse on 12th February, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to 6 months imprisonment.
3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) and conjunctively read with Article 50(6)(a) &(b) of the Constitution.
4. The applicant seeks a sentence review based on the sentence review report on record. The report is favorable. The report records that the applicant is remorseful and pleads for forgiveness, and if given a chance for an alternative sentence he is ready to perform a community service orders Obinjo Primary School. His mother Loice Atieno is supportive and she is ready to play part in the process of re-integration. The probation recommended that the applicant is suitable to serve a non-custodial sentence and therefore he should be placed on community service orders at Obinjo Primary School in Kisumu County for the remaining period of four months.
5. In determining whether to impose a non-custodial sentence, the court should consider the gravity of the offence, criminal history of the offender, character of the offender, protection of the community and the offender’s responsibilities to third parties.
6. Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.
7. The instant case presents an offence that is a perfect fit for a non-custodial sentence. I have considered the objectives of sentencing, the gravity of the offence being one of them. I am of the view that courts should encourage victim offender mediation in such cases and while at it impose non-custodial sentences. The applicant has since served 1 month in custody and with proper guidance he could equally benefit from a non-custodial sentence. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve the remainder of his sentence on CSO at Obinjo Primary School for the remaining period and the Probation officer Obinjo Primary School to effect supervision as appropriate. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is that any breach of any conditions by the applicant shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.
SIGNED, DATE AND DELIVERED AT ELDORET THIS 7THDAY OF JUNE 2024. …………………………………….R. NYAKUNDIJUDGE