Kiplagat v Republic [2024] KEHC 6619 (KLR)

Kiplagat v Republic (Criminal Revision E135 of 2024) [2024] KEHC 6619 (KLR) (7 June 2024) (Ruling)

Neutral citation: [2024] KEHC 6619 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E135 of 2024

RN Nyakundi, J

June 7, 2024

Between

Brian Kiplagat

Applicant

and

Republic

Respondent

Ruling

Representation:Mark Mugun for the state 1. The applicant was charged with the offence of stealing contrary to section 268 as read with section 275 of the Penal Code.

2. The applicant pleaded guilty to the offence before Hon. P. Areri on 31st January, 2024 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 based on the probation report dated 28th March, 2024. The probation officer’s report indicates that the applicant is remorseful and prayed for a non-custodial sentence. However, the probation officer proposed that the Applicant is not suitable for a non-custodial sentence given that he has served only 3 months out of the three-year sentence. I couldn’t agree more. I have not had sight of any compelling reasons to consider the applicant for a non-custodial sentence.

5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -

6. 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.

7. Upon perusal of the probation report, the same is not favorable and I am inclined to deny the application at the moment. Having taken into account the circumstances of the case and the fact that the applicant has not served a considerable part of his sentence, I am of the considered opinion that a sentence combining both custodial and non-custodial sentence will achieve the objective of both deterrence and rehabilitation.

8. Having taken further into account the doctrine of proportionality in sentence and the fact that the applicant has a balance of 2 years and 9 months, I have come to the logical conclusion that the sentence should be served as follows: -(a)Nine (9) months imprisonment to act as deterrence and retribution.(b)Two (2) years thereafter on probation for rehabilitation and placement of the convict into society.

SIGNED, DATE AND DELIVERED AT ELDORET THIS 7TH DAY OF JUNE 2024. ............................R. NYAKUNDIJUDGE