[2007] KEHC 1720 (KLR)
The court found that the accused failed to provide any credible evidence to support his claim that his absence from community service was due to his child's illness or death. The testimony of the prosecution, through the probation officer, was preferred as it was unchallenged and credible. The accused's explanation...
Source-derived case information.
- Citation
- [2007] KEHC 1720 (KLR)
- Parties
- Respondent: Republic; Applicant: Simon Maina Mwangi
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 57 of 2007
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- Community Service Order cancelled; accused to serve remainder of sentence in prison.
- Legal Topics
- Community Service Orders, Breach of Court Orders, Sentencing, Probation and Parole
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Simon Maina Mwangi
Applicant
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the accused breached the terms of the Community Service Order by absconding from his assigned duties.
- 2 Whether the accused provided sufficient evidence to justify his absence from community service.
Ratio Decidendi
The court found that the accused failed to provide any credible evidence to support his claim that his absence from community service was due to his child's illness or death. The testimony of the prosecution, through the probation officer, was preferred as it was unchallenged and credible. The accused's explanation was deemed insufficient and unsubstantiated. Consequently, the court held that the accused was in breach of the Community Service Order and ordered the cancellation of the order, requiring the accused to serve the remainder of his sentence in prison.
Court Disposition
Community Service Order cancelled; accused to serve remainder of sentence in prison.
Orders
- The Community Service Order in respect of the accused is cancelled.
- The accused is ordered to be returned to G.K. Prison Malindi to serve the balance of his term, being 10 months.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI Criminal Revision 57 of 2007
REPUBLIC………..………..….………………..PROSECUTOR
VERSUS
SIMON MAINA MWANGI…....………………………ACCUSED
J U D G M E N T
The accused, Simon Mwangi, was released on revision to serve Community Service Order (C.S.O.) for 10 months being the balance of his sentence. He was posted to work at the Malindi beach cleaning programme. Conrad Masinde (PW1) testimony is that he did not work at all. He absconded immediately upon his release. He is thus incontravention of section 5 (b) of the Community Service Order.
The accused in his defence has testified that his child was unwell at Kerugoya. He left after working for approximately 1 ½ week to attend to the said child. However, he has not tendered evidence of his child’s sickness or death. The court has the testimony of the prosecution through probation officer (PW1) and that of the of accused.
I prefer the testimony of the prosecution to that of the accused because no evidence regarding the sickness and eventual demise of his child has been received in evidence. The accused person is thus economical with the truth. Accordingly, I cancel the Community Service Order in respect of the accused and order that he be returned to G.K. Prison Malindi to finish the balance of his term which stood at 10 months before his release. Ordered accordingly.
Dated and delivered at Malindi this 23rd day of July, 2007.
N.R.O. OMBIJA
J U D G E