[2022] KEHC 15671 (KLR)
The court found that although the sentence imposed was lawful and lenient, the applicant's status as a first offender and her social circumstances warranted consideration of a non-custodial sentence. The court held that a probation officer's report should have been called for to appreciate the applicant's...
Source-derived case information.
- Citation
- [2022] KEHC 15671 (KLR)
- Parties
- Applicant: Margaret Atieno Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E054 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- sentence revised; custodial sentence substituted with probation
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Atieno Owino
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the sentence imposed on the applicant was lawful and appropriate given her status as a first offender.
- 2 Whether the court should have considered a probation officer's report before sentencing.
- 3 Whether the circumstances justified substitution of the custodial sentence with a non-custodial sentence.
Ratio Decidendi
The court found that although the sentence imposed was lawful and lenient, the applicant's status as a first offender and her social circumstances warranted consideration of a non-custodial sentence. The court held that a probation officer's report should have been called for to appreciate the applicant's background. Given her inability to pay the fine and her responsibilities as a caregiver, the court determined that a probation sentence was more appropriate. The custodial sentence was therefore substituted with a one-year probation order, with a warning that reoffending would result in imprisonment to complete the original sentence.
Court Disposition
sentence revised; custodial sentence substituted with probation
Orders
- The sentence of a fine of KES 50,000 or 180 days imprisonment is set aside.
- The applicant shall serve on probation for one year from the date of release.
Full Case Text
Judgment text and source record
22 paragraphs
Owino v Republic (Criminal Revision E054 of 2022) [2022] KEHC 15671 (KLR) (28 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15671 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Revision E054 of 2022
RE Aburili, J
November 28, 2022
Between
Margaret Atieno Owino
Applicant
and
Republic
Respondent
(Being an Application for sentence revision against sentence by Hon. M.O. Wambani, Chief Magistrate on 23. 11. 2022 at Siaya CM’s Court in Criminal Case No. E392 of 2022)
Ruling
1. I have considered the application dated November 28, 2022 under certificate of urgency. I certify the same as urgent.
2. On request for sentence revision, I find that the sentence imposed on the convict on her own plea of guilty is lawful and lenient. However, the convict being a first offender as per the address by the prosecution, the court should have called for a probation officer's report to appreciate the social circumstances of the convict who appears to be engaged in heavy manufacturing of illicit brew and which breeds other serious offences.
3. The convict has annexed a letter from the assistant chief central alego sub location stating that she is a widow and sole caregiver for her two orphaned grandchildren who are engaged in class 8 and class 6 national examinations. It appears that the convict has been engaged in this illicit business for a while because one cannot just start brewing over 100 litres of illicit brew and become a first offender. It also appears that the local administration has been covering her up and the law enforcement agencies finally caught up with her. She is however unable to raise the kshs 50,000/= fine imposed on her because of her social status.
4. Nonetheless, I am of the view that this is a case suitable for non-custodial sentence.
5. I hereby revise the sentence of a fine of kshs 50,000 imposed on the convict in default 180 days prison term and substitute the same with an order that the convict shall serve on probation for a period of one year from date of release and should she reoffend, she shall be arrested and returned to prison to complete the sentence.
6. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 28TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE