Lobilae v Republic [2024] KEHC 5221 (KLR)

Lobilae v Republic (Criminal Revision E050 of 2024) [2024] KEHC 5221 (KLR) (17 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5221 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Revision E050 of 2024

RN Nyakundi, J

May 17, 2024

Between

Lokaale Lobilae

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of stealing stock contrary to section 278 of the Penal Code. The particulars of the offence are that on diverse dates between May to October, 2023 at Nadooto village in Turkana Central Sub-County within Turkan County, the applicant jointly with others not before court stole nine goats and two camels all valued at Kshs. 170,000 the property of David Lolibae.

2. The applicant pleaded guilty to the offence before Hon. D. Orimba on 12th January, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to a fine of Kshs. 35,000/= in default 12 months 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 sentence review report on record. The report is responsive. The report indicates that the applicant is remorseful and regrets his action and also promised to be a law abiding citizen going forward if granted a chance to serve a non-custodial sentence. From the prison assessment, it is said that he has been counselled spiritually and psychologically by Lodwar GK prison social welfare on regularly basis. That he has no indiscipline cases reported by prison authorities, which is an indication of his improvement in character and behavior. The report recommended that the applicant be placed on a Community service Order at Kerio chief’s office under supervision of chief Napudakwi.

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.With regard with this case, it appears that there was more emphasis on deterrence than rehabilitation. The applicant in this case had no previous convictions. He pleaded guilty to the charge which could have contributed to a reduction of sentence. The circumstances in which the crime was committed is undoubtedly such as to render it necessary such as to render to impose a non- custodial sentence. The Fact that the Applicant is relatively young and that she is remorseful is a factor which is favourable to the Applicant that appropriately releasing her to the home based rehabilitation would not be prejudicial to society.

6. Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.

7. Having gone through the facts of the present case and particularly the charge in question, the circumstances fit the legal framework of the Community Service Act as an alternative sentence to imprisonment. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve the remainder of his sentence i.e. 7 months at the Lodwar Probation Office. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is that any breach of any conditions by the applicant shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.

SIGNED, DATE AND DELIVERED AT LODWAR THIS 17TH DAY OF MAY 2024. In the Presence ofAppellantMr.Jonathan Bungei for the State……………………………………R. NYAKUNDIJUDGE