[2023] KEHC 23811 (KLR)
The court found that the trial magistrate failed to consider the applicant's guilty plea and first offender status, which warranted a more lenient sentence. Additionally, the default sentences imposed for Counts II and III exceeded the statutory maximum under section 28(2) of the Penal Code. The court exercised its...
Source-derived case information.
- Citation
- [2023] KEHC 23811 (KLR)
- Parties
- Applicant: Kenneth Kipkoech Rop; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E102 of 2023
- Procedural Posture
- Criminal Revision / Judgment on Revision
- Outcome
- sentence revised; applicant released
- Judges
- JK Sergon
- Legal Topics
- Sentencing Revision, Default Sentences, Plea of Guilty, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Kipkoech Rop
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was excessive in light of the applicant's guilty plea and first offender status.
- 2 Whether the default sentences for Counts II and III were lawful under section 28(2) of the Penal Code.
- 3 Whether the applicant was suitable for a non-custodial sentence based on the probation report.
Ratio Decidendi
The court found that the trial magistrate failed to consider the applicant's guilty plea and first offender status, which warranted a more lenient sentence. Additionally, the default sentences imposed for Counts II and III exceeded the statutory maximum under section 28(2) of the Penal Code. The court exercised its revisionary jurisdiction to set aside the original sentences, substituting a five-year sentence for Count I and reducing the default sentences for Counts II and III to one month each, to run concurrently from the original date of sentence. As a result, the applicant had already served the full adjusted sentence and was entitled to immediate release.
Court Disposition
sentence revised; applicant released
Orders
- The sentence of ten years imprisonment for Count I is set aside and substituted with five years imprisonment from September 10, 2018.
- The default sentences of six months for Counts II and III are set aside and substituted with default sentences of one month each, to run concurrently with Count I from the date of sentence.
Full Case Text
Judgment text and source record
25 paragraphs
Rop v Republic (Criminal Revision E102 of 2023) [2023] KEHC 23811 (KLR) (19 October 2023) (Revision)
Neutral citation: [2023] KEHC 23811 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E102 of 2023
JK Sergon, J
October 19, 2023
Between
Kenneth Kipkoech Rop
Applicant
and
Republic
Respondent
Revision
1. Kenneth Kipkoech Rop,hereinafter referred to as the Applicant was convicted of several offences ; Count I - killing an animal with intent to steal contrary to section 289 of the Penal Code cap 63 Laws of Kenya; Count II - creating disturbance in a manner to cause a breach of the peace contrary to section 95 (1) (b) of the Penal Code cap 63 Laws of Kenya and Count III - creating disturbance in a manner to cause a breach of the peace contrary to section 95 (1) (b) of the Penal Code cap 63 Laws of Kenya.
2. On September 10, 2018, Hon. B.R. Kipyegon, the then Senior Resident Magistrate sentenced the applicant to serve ten (10) years imprisonment under Count I and a fine of Kshs 5,000/= and in default six (6) months under both Count II and Count III. The sentences were to run consecutively.
3. The proceedings relating to the aforesaid case, that is Kericho CMC Case No. E2866 of 2018 Republic-vs-Kenneth Kipkoech Rop were placed before this Court pursuant to the provisions of section 362 and 364 of the Criminal Procedure Code.
4. The Probation Officer filed a sentence review report on October 9, 2023. In the said report it was noted that the Applicant was remorseful and regrets committing the said offence, he admitted that on the material day he was under the influence of alcohol. He maintained that he would be a law abiding citizen and would shun negative acquaintances who may lure him back to the use of alcohol. The probation officer noted that the family members were willing and ready to receive him back home. The family reportedly sought forgiveness from the complainant who was the owner of the slaughtered cow.
5. The prison authorities stated that during incarceration the applicant was attached to the kitchen department. The prison authorities were of the opinion that the applicant had reformed and were therefore in favour of a non-custodial sentence.
6. The probation officer having noted the following, firstly, that the current home environment was favourable for release on a non-custodial sentence as the family members were receptive and willing to assist him in the reintegration process and further rehabilitation. Secondly, the applicant promised not to reoffend. The probation officer was therefore of the view that the applicant was suitable to serve on a non-custodial sentence, the probation officer proposed that the applicant be considered to serve on a probation order for a period of one (1) year, subject to the court’s discretion.
7. The Applicant has so far served five (5) years and one (1) month and is remaining with five (5) years and eleven (11) months to complete his sentence.
8. The record indicates that the Applicant pleaded guilty to the offences. It is also apparent that he was a first offender. Had the Trial Magistrate taken into account aforesaid twin factors, he would have pronounced a lesser sentence that the one he meted out. It is also apparent that in Counts II and III, that the default sentence pronounced is six (6) months which is Contrary to the Provisions of Section 28 (2) of the Penal Code which prescribes a default sentence of three (3) months in respect of a fine imposed of between Kshs 2,500/= and Kshs 15,000/=
9. In the circumstances, this Court is entitled to interfere with the sentences in exercise of its revisionary power. Consequently, I hereby order that the sentence of ten (10) years is set aside and is substituted with a sentence of five (5) years in Count I. The adjusted sentence to run from the date of sentence i.e. from September 10, 2018. The default sentences in Counts II and III of six (6) months imprisonment are hereby set aside and is substituted default sentences of 1 month each. The default sentences are ordered to concurrently with the sentence in Count I from the date of sentence.
10. It is clear that the adjusted sentences having been ordered to run from the date of sentence means that the applicant has served in full his sentence. Consequently, the Applicant namely:- Kenneth Kipkoech Rop is ordered set free from custody forthwith unless lawfully held.
DATED, SIGNED AND DELIVERED THIS 19TH DAY OF OCTOBER, 2023. ............................J.K. SERGONJUDGE