[2016] KEHC 7779 (KLR)
The court found that, in light of the favourable probation officer's report, the applicant's admission of guilt, positive attitude towards rehabilitation, and amenability to non-custodial supervision, the custodial sentence was not the most appropriate in the circumstances. The court exercised its revisionary...
Source-derived case information.
- Citation
- [2016] KEHC 7779 (KLR)
- Parties
- Applicant: Robert Odhiambo Oketch; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 97 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Custodial sentence set aside and substituted with a Community Service Order.
- Legal Topics
- Sentencing Revision, Obtaining by False Pretences, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Odhiambo Oketch
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the custodial sentence imposed on the applicant was proper in light of the circumstances and the probation officer's report.
- 2 Whether the applicant should be granted a non-custodial sentence under the Community Service Orders Act.
Ratio Decidendi
The court found that, in light of the favourable probation officer's report, the applicant's admission of guilt, positive attitude towards rehabilitation, and amenability to non-custodial supervision, the custodial sentence was not the most appropriate in the circumstances. The court exercised its revisionary jurisdiction to set aside the custodial sentence and substituted it with a non-custodial sentence under the Community Service Orders Act, directing the probation officer to recommend a suitable location for the applicant to serve the order.
Court Disposition
Custodial sentence set aside and substituted with a Community Service Order.
Orders
- The custodial sentence imposed on the applicant is set aside.
- The applicant shall serve the sentence under the Community Service Orders Act.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.97 OF 2016
ROBERT ODHIAMBO OKETCH………...………………..APPLICANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
RULING
Pursuant to Section 362 of the Criminal procedure Code, the original trial court file in the Chief Magistrate’s Court at NairobiCr. Case No. 869 of 2012, Republic Vs Robert Odhiambo Okech, has been forwarded to this court for purposes of the court satisfying itself as to the correctness, legality or propriety of the sentence passed and as to the regularity of the proceedings. The Applicant was the accused and was charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. It was alleged that on diverse dates between 28th March, 2012 and 18th April, 2012 at Sunview Estate along Mbagathi Way within Nairobi County, jointly with others not before court with intent to defraud, obtained cash Kshs. 1,178,000/= from Monica Munyae Sundi by falsely pretending that he was in a position to import for her a motor vehicle make Mercedes Benz C-200 from Japan a fact he knew to be false. He was tried, found guilty and sentenced to 12 months imprisonment.
By Chamber Summons filed in person on 8th March, 2016, he urges the court to set aside the custodial sentence and prefer an option of a fine. The court ordered for a probation officer’s report and the same was duly filed on 5th May, 2016 by Mr. Adika M.M., Probation Officer at Milimani Court office. The said report is favourable to the Applicant. It depicts the Applicant as positive towards rehabilitation. He admits to committing the offence and was amenable to an out of court settlement between himself and the complainant. He has also undergone various counseling sessions while serving sentence. His skill has enabled him to resolve various conflicts amongst the inmates. It is also indicated that he has a fixed abode and it would be possible to supervise him on a non-custodial sentence. Given this background, I would prefer a non-custodial sentence specifically under Community Service Orders. I accordingly set aside the custodial sentence and substitute it with an order that the Applicant shall serve the sentence under the Community Orders Act. I direct the Probation Officer, Mr. Adika to report back to the court on 25th May, 2016 on the preferred location that the Applicant can serve under C.S.O.
DATED and DELIVERED this 18th day of MAY, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
Applicant in person
Miss Nyauncho for the Respondent