D O v Republic [2018] KEHC 4612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HC. CR. REV. NO. 127 OF 2018

(CORAM: R. E. ABURILI - J.)

D O.............................................................APPLICANT

VERSUS

REPUBLIC...........................................RESPONDENT

(Being an appeal against both the conviction and the sentence dated 20. 04. 2018 in Criminal Case No. 266 of 2018 in Ukwala Law Court before Hon. G. Adhiambo – PM)

RULING OF THE COURT

The Applicant herein D O Owas convicted of the offence of being found in possession of flat plastic bags contrary to Section 140(b) of the Environmental Management and Coordination Act No. 5 of 2015 Cap 387 Laws of Kenya.He pleaded guilty to the charge before Hon. G. Adhiambo on 20/4/2018 and was sentenced to serve one (1) year in prison.

He intended to appeal as shown by letter dated 10th May 2018 by George Mbeya, Advocate to Court but he never filed the appeal.

He now seeks revision of his sentence vide his application dated 8/5/2018.  He states that he is a first offender and is remorseful that he kept plastic bags in his house after the legal warning and that he wished to dispose them off.

That he suffered 3 broken in a 2014 accident and since 2013 he lives on ARVs.  He is married with children who depend on him.  He prays for non-custodial sentence.

The Probation Officer, Siaya David Ojow in his post sentence review report dated 18th July 2018 shows that the applicant convict is remorseful and is sickly while he is on ARVs and that his family is suffering in his absence.  He recommends medical attention and integration through probation.

I have considered the mitigating circumstances and the nature of the offence which is environment based.  It is a serious offence.  The Convict has already served 3 months out of the 12 months imprisonment.  He has learnt his lessons and should be able to educate others on the need to obey the law and to keep our environment free from harmful material.

In the premises, the sentence which is remaining of 9 months is hereby revised and substituted with an order placing the convict on Probation for a period of 6 months from date of release.  He should be under close supervision of Probation Officer, Siaya County for guiding and counselling as he accesses medicine for his health condition.

Dated, Signed and Delivered at SIAYA this 31ST day of July 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr. Okach: Prosecution Counsel for the State

D O: Applicant in person (present)

Court Assistant: Akida and Brenda