[2009] KEHC 138 (KLR)
The court found that the original order committing the accused to a Borstal institution was inappropriate because the institution only accommodates boys and the order lacked a supporting Probation Officer's report. The Probation Officer's report indicated significant community hostility towards the accused, making a...
Source-derived case information.
- Citation
- [2009] KEHC 138 (KLR)
- Parties
- Respondent: Republic; Applicant: Stellah Nanjala
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 40 of 2008
- Procedural Posture
- Criminal Revision / Revision of Sentencing Order
- Outcome
- sentence revised; accused to serve 5 years imprisonment as specified
- Legal Topics
- Sentencing Revision, Juvenile Offenders, Probation Reports, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Stellah Nanjala
Applicant
Procedural Posture
Criminal Revision / Revision of Sentencing Order
Legal Issues
- 1 Whether the initial sentencing order committing the accused to a Borstal institution was appropriate given the institution only accommodates boys.
- 2 Whether the accused should be placed under probation, community service order, or serve a custodial sentence in light of the Probation Officer's report and community hostility.
Ratio Decidendi
The court found that the original order committing the accused to a Borstal institution was inappropriate because the institution only accommodates boys and the order lacked a supporting Probation Officer's report. The Probation Officer's report indicated significant community hostility towards the accused, making a non-custodial sentence such as probation or community service order unsuitable for her safety and rehabilitation. The court determined that the appropriate course was to sentence the accused to five years imprisonment, with the first two years to be served at the Juvenile Wing of Kakamega Female Prison and the remaining three years at the Adult Wing of the same prison, thereby...
Court Disposition
sentence revised; accused to serve 5 years imprisonment as specified
Orders
- The accused shall serve 2 years at the Juvenile Wing, Kakamega Female Prison.
- The accused shall serve the remaining 3 years at the Adult Wing, Kakamega Women Prison.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Criminal Case 40 of 2008
REPUBLIC........................................................PROSECUTOR.
VERSUS
STELLAH NANJALA.................................................ACCUSED.
REVISION.
On the 12th day of May, 2009 I sentenced the accused to serve a sentence of two (2) years imprisonment at Shikusha Bostal Institution and subsequently three (3) years at Kakamega Women Prison.
In compliance with my said order the accused was taken to Shikusha Bostal Institution by a committal order of even date.
It came to pass that Shikusha Borstal Institution only accommodates boys. Consequently she could not be admitted at the said institution. Moreso, in the light of the fact that the order was not accompanied by a Probation Officers report.
Faced with that dilemma, the state counsel, Mr. Mutuku applied that the District Probation officer, Trans Nzoia West, do a report on the suitability of the accused being palced in a Borstal Institution. In the meantime, the accused was remanded at the Eldoret Juvenile Home. Mention was scheduled for 24th June, 2009, then on 8th July, 2009, then 22nd July, 2009 while awaiting the said Probation Officers report.
By a letter dated 22nd July, 2009, Mr. Michael Wafula, advocate for the accused, applied for revision of the orders issued on 25th May, 2009.
In compliance with section 365 (2) of the Criminal Procedure Code, I ordered both the advocates for the accused and the state counsel to address me on the issues at hand.
Mr. Michael Wafula, pleaded on behalf of the accused that in view of the Probation Officers report, the court should consider admitting the accused to probation at a Girl’s Hostel or consider placing the accused to serve under Community Service Order of a specified period.
Mr. Mutuku, learned state counsel, took the view that placing the accused under Community Service order would not be appropriate. In submitting so, he placed reliance on paragraph 4 of page 4 of the Probation Officers report. He urged that hostility by the community against the accused would militate against non custodial sentence. That he may be subjected to harm in that event. That it would be in the interest of the accused to be committed to a Juvenile wing in a female prison for such period until she attains the age of majority. Having attained the age of majority she may then serve the balance of the 5 years in a female adult prison.
I have agonized over the matter. In the light of the Probation Officers report, I am of the view that placing the accused under the community service order would be inappropriate having regard to the hostility manifested by the community at least for now.
Accordingly, in line with the Probation Officers report, I hereby order and sentence the accused to serve 5 years imprisonment. Of the five (5) years, the accused shall serve the (2) years at the Juvenile Wing, at Kakamega Female Prison. Subsequently, the accused shall serve the balance being 3 years, at Kakamega Adult Wing of Women Prison. It is so ordered.
Dated and delivered at Kitale this 23rd day of July, 2009.
N.R.O. OMBIJA.
JUDGE.