[2024] KEHC 6961 (KLR)

Simiyu v Republic (Criminal Revision E165 of 2024) [2024] KEHC 6961 (KLR) (11 June 2024) (Ruling)

Neutral citation: [2024] KEHC 6961 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E165 of 2024

RN Nyakundi, J

June 11, 2024

Between

Samuel Simiyu

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of cutting/making charcoal in state forest contrary to section 64(1)(a) and Section 67(1)(e) as read with Section 64(2) and Section 68(1) of the Forest Conservation and Management Act 2016.

2. The applicant pleaded guilty to the offence before Hon. P. Areri on 6th March, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to a fine of Kshs. 100,000/= in default serve 2 years imprisonment.

3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) as conjunctively read with Article 50(6)(a)&(b) of the Constitution.

4. The applicant seeks a sentence review based on the sentence review report filed on 31st May, 2024. The report records that the applicant is a form four leaver trading in fruits and green vegetables at Bahati market. He admits committing the offence while in the company of a friend who disappeared with the laptop in question to date. That he has been in prison for two months mostly working as a cleaner. Given the said facts, the report recommended that the applicant is suitable for a non-custodial sentence for the remaining 13 months. That he will be counselled towards behavior change.

5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.Punishment against an individual offender should not be used as a warning to the general public because this is punishing an offender for wrongs he has not committed yet. First and foremost, there are long sentences imposed as a deterrence measure without the purpose of factoring in rehabilitation and transformation of the offender. There is always a reluctance by trial courts to prefer deterrence as a justification for punishment even if it is disproportionate to the offence charged. In the comparative case of S v Makwanyane 1995 3 SA 391 (CC) made the following observations. That if general deterrence reduces an offender to a “guinea pig” then it should be a wholly objectionable goal of punishment regardless of the state of the offender. The instrumentalization of an offender violates the right to human dignity which is guaranteed in our Article 28 of the constitution. The age or criminal record of an offender is of no consequence. Otherwise compliance with equality before the law and freedom from non-discrimination in Art. 27 of the constitution may be called into question. In deterrence trajectory of sentencing, the principle of proportionality is removed even for first offenders, those who have entered plea of guilty, or those with mitigatory factors which favour a non-custodial sentence. The court also in Rep v Kholoviko (1996) MLR 355 took this view on consideration of the negative consequences of long sentences both on a convict and others including victims like spouses and children of the offender/convict. “ The courts must also consider how such long sentences that are advocated can deter other accused persons, present as well as future ones. There is no evidence that these offences have reduced by reason of long sentences. In fact, they are on the increase. For first time offenders, not only common sense but the law as well, require[s] that they should not be sent to prison willy-nilly. They should only be sent to prison if there are real and compelling reasons for doing so. This court does not believe, nor is it convinced, that mere trend or level or even conventional sentences alone have any impact on the accused himself. It may have merit on generating confidence in the courts and promoting the concept of predictability of the sentences that the courts will impose generally, but there is no real impact on deterrence and reformation

6. The facts reveal an applicant who was trying to engage in the charcoal business without a permit issued by the Kenya forest service. It is assumed that he was trying to make ends meet given that he is a family man. The offence is condemned with the strongest terms possible and the applicant is advised to be a law abiding citizen in any business he carries out.

7. From the foregoing and in considering the sentencing report, I am of the considered opinion that the applicant ought to benefit from a non-custodial sentence given that he is a suitable candidate for reintegration. The applicant to this end is placed on a probation sentence of 13 months. It is necessary that during the period under review while the applicant is serving probation sentence, quarterly reports be filed in court by the probation officer to capture the elements of restorative justice in this case.

SIGNED, DATE AND DELIVERED AT ELDORET THIS 11TH DAY OF JUNE 2024. R. NYAKUNDIJUDGE