[2019] KEHC 20 (KLR)
The court found that although the sentence imposed was lawful and within the statutory maximum for the offence of creating a disturbance, the applicant had already served one month of the six-month sentence. Considering the nature of the offence, the applicant's eligibility for a non-custodial sentence, and the...
Source-derived case information.
- Citation
- [2019] KEHC 20 (KLR)
- Parties
- Applicant: Zachary Ouma Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 107 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; custodial sentence substituted with conditional discharge
- Judges
- RE Aburili
- Legal Topics
- Sentencing, Revision of Sentence, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachary Ouma Onyango
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was excessive given the circumstances.
- 2 Whether the applicant was eligible for a non-custodial sentence under the Penal Code.
Ratio Decidendi
The court found that although the sentence imposed was lawful and within the statutory maximum for the offence of creating a disturbance, the applicant had already served one month of the six-month sentence. Considering the nature of the offence, the applicant's eligibility for a non-custodial sentence, and the prevailing issue of prison congestion, the court exercised its discretion to substitute the remainder of the custodial sentence with a conditional discharge. The applicant was ordered not to commit any offence within the next year, failing which he would serve the balance of the original prison term.
Court Disposition
sentence revised; custodial sentence substituted with conditional discharge
Orders
- The remainder of the prison sentence is substituted with a conditional discharge for one year under Section 35 of the Penal Code.
- If the convict commits any offence within one year, he shall serve the balance of the original prison term.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. 107 OF 2019
ZACHARY OUMA ONYANGO..................APPLICANT
VERSUS
REPUBLIC................................................RESPONDENT
(Being an Application for Revision of sentence in Criminal Case No.
584 of 2019 at Bondo Principal Magistrate’s Court, delivered on 28. 11. 2019)
RULING
1. The convict ZACHARY OUMA ONYANO was sentenced on 18/11/2019 for the offence of creating a disturbance contrary to Section 95(1)(b) of the Penal Code. He was sentenced to serve 6 months imprisonment in Ukwala SRM Cr. C. No. 584/2019. He has so far served only one month. The sentence imposed was the maximum for the misdemeanour. The convict could have benefitted from alternative non-custodial sentence. However, the sentence is lawful.
2. In view of the congestion in prison, I exercise judicial discretion and substitute the remainder of the prison sentence with a conditional discharge under Section 35 of the Penal Code for the convict not to commit any offence in the next one year and in breach thereof the convict shall be send back to prison to serve the balance of the prison term unserved.
3. File closed.
4. Orders accordingly.
Dated, signed and Delivered at Siaya this 20th Day of December 2019
R.E. ABURILI
JUDGE