[2024] KEHC 3935 (KLR)

Wetondo v Republic (Criminal Revision E069 of 2024) [2024] KEHC 3935 (KLR) (23 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3935 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E069 of 2024

RN Nyakundi, J

April 23, 2024

Between

Philip Wetondo

Applicant

and

Republic

Respondent

Ruling

Representation:Mark Mugun for the state 1. The applicant was charged with the offence of Burglary contrary to section 279 (b) of the Penal Code. 2. The applicant pleaded guilty to the offence before Hon. Barasa on 19th September, 2023 and as a consequence, he was convicted on his own plea of guilty and sentenced to serve 3 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. He prays that he may be allowed to serve a non-custodial sentence. The probation officer filed a report on 17th April, 2024. The Probation report is responsive. The Probation officer indicated that the victim is open to the decision this court will make but he would wish the applicant serves the sentence to completion.

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.

6. I have considered the offence in question and the aggravating factors. The sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: -i.Retribution: to punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.iv.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.v.Community protection: to protect the community by incapacitating the offender.vi.Denunciation: to communicate the community’s condemnation of the criminal conduct.vii.Reconciliation: To mend the relationship between the offender, the victim and the community.viii.Reintegration: To facilitate the re-entry of the offender into the society.

7. My considered view is that considering the aforementioned factors and the objectives of sentencing in totality, the applicant ought to serve a non-custodial sentence. He has a remainder of 18 months and I believe the period he has served in custody has shaped his character. I see no reason why he should continue to serve a custodial sentence. In the end, I am inclined to direct that he serves a non-custodial sentence for the remainder of the sentence period. The applicant is hereby placed on probation for 18 months. The same shall be done under the supervision of the probation officer, who shall in turn file monthly reports in court to ensure compliance and the effectiveness of the sentence.

SIGNED, DATE AND DELIVERED AT ELDORET THIS 23RD DAY OF APRIL 2024. .........................R. NYAKUNDIJUDGE