[2023] KEHC 25504 (KLR)

Otisi v Odpp (Criminal Revision E266 of 2023) [2023] KEHC 25504 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25504 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision E266 of 2023

TM Matheka, J

November 17, 2023

Between

Senga Otisi

Applicant

and

Odpp

Respondent

Judgment

1. The applicant was charged with the offence of stealing c/s 275 of the penal code. It was alleged that on diverse dates between 20th October and November 16, 2022 at Kitandi Village in Wetema Location Kilungu S/Location Makueni County he stole indigenous trees valued at Ksh 51, 562/85 the property of Peter Mbuvi Mavoo.

2. On July 31, 2023 he was sentenced to pay fine of Ksh 70,000 in default to serve 2 years’ imprisonment.

3. On 11th August he filed an application for revision of the sentence to a non-custodial sentence.

4. I sought a Pre-sentence report and it was filed on the September 20, 2023.

5. The Probation Report concludes that ‘the appellant has refused to accept responsibility for the offence noting that he never cut the complainant’s trees, stating that the trees belong to his father. He totally lacked remorseful attitude over his action. The applicant has been in constant conflict with the complainant concerning the land boundary since 2016. He is an individual who needs to be assisted to change his mind set’

6. The report indicates that the applicant and the complainant are immediate neighbours.

7. I also noted that enclosed in the lower Court file was another file Kilungu SRM Cr Case no 26 of 2017 where the complainant is the same and the applicant herein is the accused therein. There were two counts one of cutting down trees c/s 334 (c ) of the Penal Code where he was accused of cutting down 5 indigenous trees valued at Ksh 6000 the property of Peter Mbuvi Mavoo. The second count was trespass with intent to commit an offence c/s 5(1) of the Trespass Act cap 294 of the LoK.

8. The applicant pleaded not guilty and was sentenced to fines of Ksh 20,000 in default 1-year imprisonment and Ksh 10,000 in default 6 months’ imprisonment.

9. It is the applicant’s position all through that the complainant is the one who grabbed a portion of his father’s land and that the portion where the trees was alleged to have been cut belong to his father. It is on this basis that the applicant has maintained a no remorseful stance because he maintains that he is innocence.

10. The powers of this court on revision of sentence are set out under sec 362 of the Criminal Procedure Code.Power of High Court to call for recordsThe high court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

11. Section 364 of the CPC provides (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— inter alia(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.

12. It is evident to me that the issue that is causing these criminal cases is a land or boundary dispute and until it is resolved, it appears that these parties will continue to appear before the criminal justice system with criminal cases. That is not the purpose of courts. courts must be seen to do substantive justice to the parties and where the real dispute is identifiable such as this, it is not just about rehabilitation or changing the mind of the person. It is about the court ensuring that the dispute is resolved.

13. It is my considered view that the order sentencing the applicant in the circumstances of the case was not appropriate.

14. There is need for a non-custodial option to enable the dissolution of the dispute at hand through the guidance of PACS and the mediation/ counselling team.

15. In the circumstances the order of a fine of Ksh 70,000 in default 2 years imprisonment is set aside and substituted with an order for Probation supervision.

16. The following conditions which the applicant has agreed to will apply;i.The applicant will abide by the Probation orderii.The applicant will subject himself the guidance and counselling of PACS Makueni, and the guidance and counselling of the mediation team with a view to settling the land dispute between his family and that if the complainant.iii.The PACs will involve the local administration, the applicant and the complainant and their families and the community and the applicant will attend the meetings as and when required and participate in an orderly manner.iv.In addition, the parties are advised to seek the intervention of the lands office Makueni to deal with the boundary dispute once and for all.v.The applicant will be placed on probation supervision for 21 months.vi.In default, of any of the condition herein above he will serve the remainder of the sentence in this case and be dealt with in accordance with the law for the default.vii.PACS to provide quarterly progress report to Court through the Deputy Registrar who will assign a mention date for the receipt of the reports.

DATED SIGNED AND DELIVERED THIS 17TH NOVEMBER 2023. .................................MUMBUA T MATHEKAJUDGECA MwiwaFor State - KazunguApplicant -