[2010] KEHC 3996 (KLR)
The court found that the Probation Officer's recommendation against probation was unsupported by any report or evidence on record. The trial magistrate erred in relying on such an unsubstantiated recommendation to deny the appellant probation. Given that the appellant had already served a significant period in...
Source-derived case information.
- Citation
- [2010] KEHC 3996 (KLR)
- Parties
- Appellant: Simon Kibet; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 70 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence reduced to secure immediate release
- Legal Topics
- Sentencing Principles, Probation Recommendations, Burglary Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kibet
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in relying on the Probation Officer's recommendation to deny probation to the appellant.
- 2 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that the Probation Officer's recommendation against probation was unsupported by any report or evidence on record. The trial magistrate erred in relying on such an unsubstantiated recommendation to deny the appellant probation. Given that the appellant had already served a significant period in custody since 16th February 2009, the court held that he had been sufficiently punished. The sentence was therefore reduced to a term that would secure his immediate release.
Court Disposition
appeal allowed in part; sentence reduced to secure immediate release
Orders
- The appellant's sentence is reduced to a term that secures his immediate release.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 70 of 2009
SIMON KIBET………..………………………...….APPELLANT
VERSUS
REPUBLIC……..……………………………..….RESPONDENT
JUDGMENT
SIMON KIBET, the appellant was upon his own plea of guilty to a charge of burglary contrary to Section 304(2) of the Penal Code convicted and sentenced to three years imprisonment. He has appealed against that sentence.
Before imposing that sentence on the appellant the learned trial magistrate was minded of placing him on probation. The Probation Officer, however, did not recommend probation that on the ground that the appellant was a man of no fixed aboard and chances of committing other offences were high.
I agree with Mr. Nyagaka for the appellant that there was no basis for the Probation Officer’s said recommendation. The record has no report from him. It is therefore not clear how he found out that the appellant is a man of no fixed aboard. He also did not say how he came to the conclusion that the appellant was likely to commit other offences. In the circumstances I have to reject his observations.
As the appellant has been incarcerated since 16th February 2009, I think he has been punished enough. In the circumstances I reduce his imprisonment to a term that will secure his immediate release. The appellant shall therefore be released forthwith unless otherwise lawfully held.
DATED and delivered this 26th day of January, 2010.
D. K. MARAGA
JUDGE.