Ruto v Republic [2025] KEHC 10566 (KLR)

Ruto v Republic (Criminal Revision E106 of 2025) [2025] KEHC 10566 (KLR) (22 July 2025) (Ruling)

Neutral citation: [2025] KEHC 10566 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E106 of 2025

RN Nyakundi, J

July 22, 2025

Between

David Kimeli Ruto

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged of trespass with intent to commit offence or to intimidate, insult or annoy. The brief facts are on the 7th day of February 2025 at around 1900hrs at Kaplelach are in Turbo Sub county within Uasin Gishu County, without reasonable excuse and with an intent to commit an offence or to intimidate, insult or annoy trespassed a parcel of land title number Kiplombe/emkwen Block 1(Emdin) 57 the property of Stephen Kimeli Maswai. He pleaded guilty to the offence convicted and sentenced to 18 years imprisonment. He has now applied for his sentence to be reviewed and the reminder of the sentence of 10 months’ probation at Emkwen Primary School.

Decision 2. This application is based on the provisions of the criminal procedure code namely Section 357, 362, 364 as read with 382. The constitution also provides under Art 50 (2) (p) (q) as follows:(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishments for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.(3)if this Article requires information to be given to a person, the information shall be given in language that the person understands.

3. The same constitution in Art 50 (6) (a) (b) expressly states as follows:A person who is convicted of a criminal offence may petition the High Court for a new trial if-a.The person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; andb.new and compelling evidence has become available.

4. This application is based on the social inquiry report dated 21st July 2025 carried out by the probation officer which contextualized the issues as follows:Sources of information prison records, inmate families, community and the complainantCurrent Family and Personal HistoryThe inmate was born in 1990. He is the son to the late Samuel Kipruto Lagat and one Emily Sugut of Kiplombe location. He is the 3rd born in a family of ten siblings. He attended Emkwen primary school and dropped in class seven due to financial challenges. He later ventured into casual labor to earn a living. The inmate is married to one Viola Jeptum and together sired four children. His dependents are young and school going. The family indicated the inmate is a good person but sometimes takes alcohol. He was positively regarded by his family and community and ready to welcome him in the community and assist in his rehabilitation journey. They said the inmate was the sole breadwinner and his family has adversely been affected. The local administration has no objection for his early release. The inmate stated that he is of good health.Prison Assessment, Rehabilitation, and Re-integration:The inmate is involved in farming at the prison. The prison records indicate that the inmate is fit for release. The family and community are willing to be part of rehabilitation. He is visited by his family members.Offenders Attitude towards Non-custodial MeasuresThe inmate is remorseful and takes responsibility for his offence and regrets his action. The inmate is ready to serve the community if the court considers him for early release.Recommendations:My Lord, the inmate can be considered for an early release and placed to serve CSO for a period of 10 months at Emkwen primary school.

5. The role of non-custodial sentence should underpin our penal system in which custodial sentence remains a recourse of last resort in punishing offenders. The sentence policy guidelines of the judiciary 2023 provides a framework in which Judicial discretion should be exercised to arrive at a fair and proportionate sentence on individualized circumstances. The objectives and principles of sentencing are well articulated and defined as follows:a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.d.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.e.Community protection: to protect the community by incapacitating the offender.f.Denunciation: to communicate the community’s condemnation of the criminal conduct.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society.

6. In a documented research by Chrispinus Adenya Aben entitled Factors Influencing Success of Non-Custodial Sentence in Kenya: A Case of Kilifi District in Kilifi County 2011. He made the following observations: First and foremost prison population around the world is increasingly placing enormous financial burdens on governments. There is growing recognition that imprisonment does not achieve some of its most important stated objectives, as well as being harmful to offenders, families and in the long term to the community (UNODC, 2006).

7. It came out clearly from his research; Supervision is an essential component of community based correction with the primary objective of enforcing compliance with the conditions of release to minimize risk to the public and to re-integrate the offender into the law abiding lifestyle. Lax supervision and failure to deal firmly with those who persistently violate the terms of release can bring an entire system into disrepute in criminal justice. (Killinger GG and Cromwell P.F, 1990). “The law is without doubt a remedy for great evils, yet it brings with it evils of its own”. (Subbrano V.C.G. 1993). There are three primary gateways in the criminal justice. The first is at the police at the initial stage of apprehension, the second is at the court after the determination of guilt and passing of a sentence and the third is the gateway to the community at the conclusion of the sentence (Johnson R, 2003).

8. Rule 8. 2 of the Tokyo rules on non-custodial affirm that courts or sentencing authorities may dispose off cases in any of the following ways-verbal sanctions, admonitions, reprimands and warning, conditional discharge, status penalty, economic sanctions and monetary restitution, restitution to the victim or compensation order, confiscation or expropriation, suspended or deferred sentence, probation and judicial supervision, community service order, house arrest and any other non-institutional treatment. Supervision is critical in realization of sentencing objectives. This is operationalized as poor and laxed supervision leads to reconviction and abscondism. The quality and number of contacts between the offender are key in reforming, re-integrating the offender. The caseload per officer and the frequency of contacts between the officer and the probationer determines the level of intensity of supervision based on the risk category of the probationer. The community plays key role in having offenders change. Community attitude, home environment is deterministic of offender’s potential to change.

9. Time has come to re-conceptualize the effectiveness of custodial sentencing to promote a clear, fair, uniform and consistent approach by all levels of courts. A theme of any review of sentence must not lose sight of the objectives and sentencing. Am of the consider view that an effective sentence must also serve to communicate to society that justice has been done and the wrong doer punished and denounced for his or her conduct. Generally speaking over time I have been involved in the practice of law as a trier of criminal cases they is no probative evidence that the harsher, punitive or severe the sentence does provide greater marginal deterrent effects.

10. Sentencing is a discretionary process mainly exercised by trial courts who have the advantage to appreciate the circumstances of the offence and how it applies to the sentencing objectives and principles within the regulatory framework of our sentencing policy guideline 2023. This court is being asked to review the custodial sentence and have it substituted with non-custodial sentence. As I appreciate the record and the impugned decision on sentence I bear in mind that this is one area of law which involves the weighing of may complex factors, it will always be possible to point to some factors which should arguably have been taken into account or left out of account; even if they should have been, the court should not intervene unless it is convinced that this would have resulted in the decision going the other way.

11. There is a big outcry amongst our communities and society at large on the level of inconsistency, disparity, unfairness, and disproportionate verdicts on sentence being imposed by the trial courts and on even on appeal which do not reflect the sentencing objectives and principles in our policy document. As if that is not enough the letter and spirit of our sentencing scheme seems to depart from the legislatures intention and vision in the criminal administration of justice. Sentencing in Kenya ought to be fair and proportionate to the crime being prosecuted by the state as against the accused persons or defendant. These canons on fair and proportionate sentence requires that: All relevant factors of a case must be considered including the seriousness of the offence, the impact on the victim and others affected by the case, and the circumstances of the offender;

Sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case;

Reasons for sentencing decisions must be stated as clearly and openly as circumstances permit;

Sentencing decisions must be made lawfully and sentencers must have regard to any sentencing guidelines which are applicable;

People should be treated equally, without discrimination; and

Sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability

12. It is vital that the test of the seriousness of the offence when weighed with the applicant being a first offender, he pleaded guilty to the allegations on trespass with intent to commit an offence or to intimidate insult or annoy contrary to section 5 (1) of the trespass Act and the effect of mitigating factors renders this court to review the sentence for purposes of rehabilitating the offender as a consequence he is placed in community service order for 10 months at Emkwen Primary school.

SIGNED, DATED AND DELIVERED VIA CTS AT ELDORET THIS 22ND DAY OF JULY 2025. .............................R. NYAKUNDIJUDGE