Mercy Makona Nelima alias Joy v Republic [2018] KEHC 3323 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION No. 679 of 2018.

MERCY MAKONA NELIMA alias JOY....................APPLICANT

VERSUS

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

RULING.

1. Mercy Makona Nelima alias Joy, hereafter the Applicant by way of a Notice of Motion seeks review of the sentence imposed on her. She urged the court to consider that; (i)she pleaded guilty at the trial, (ii)she was a first offender, (iii)she was truly remorseful and regretful, (iii)she had already served one year imprisonment during which she had gained knowledge in spiritual theology, computers and curriculum education, (iv) she was willing to continue her secondary school education, (v)she had a permanent residence where she could be traced, (vi) her health had deteriorated drastically due to her asthmatic condition, (vii)she is young as she is 21 years old and the mother to a child aged 3 years old, and (viii)she was innovative and talented and incarcerating her for five years was harsh and excessive.

2. A probation officer’s report was produced which recommended a non-custodial sentence, probation. Further, that there would be vocational training for the purpose of empowerment.

3. The Applicant was convicted in Makadara Criminal Case 901 of 2017 and it for the offence of Child Stealing Contrary to Section 174(1)(b) of the Penal Code. The particulars of that offence were inter alia that she kidnapped a 7 month old child on 12th April, 2017. She was arraigned in court on 24th April, 2017 and was convicted on her own plea of guilty. The brief facts of the case were, inter alia, that she had acquired a position of trust with the mother of the child and on the day in question she was left to tend to the child as the mother undertook other duties. She took this opportunity to steal the baby which she had been contemplating for a while particularly as she was aware that the child’s mother was doing well financially. She was traced to Juja where she had the child. She was sentenced to five years imprisonment.

4. The court has considered the Probation Officer’s Report and the recommendation therein but finds that a term of incarceration is necessary as it would act as a deterrence to other would-be offenders. More so, because the offence is serious. I also consider that the Applicant pleaded guilty and did not waste the court’s time. Therefore, in line with the Sentencing Policy Guidelines which state that where there are aggravating factors the sentence ought not to exceed half of the prescribed sentence, I set aside the sentence of five years imprisonment and substitute it with an order that the Applicant shall serve three years imprisonment. It is so ordered.

Dated and Delivered at Nairobi this 3rd October, 2018.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of;

1. Applicant in person.

2. Miss Atina For the Respondent.