Otute v Republic [2023] KEHC 25633 (KLR)

Otute v Republic (Criminal Revision E129 of 2023) [2023] KEHC 25633 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25633 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Revision E129 of 2023

RE Aburili, J

November 17, 2023

Between

Martin Ochieng Otute

Applicant

and

Republic

Respondent

(From the original conviction and sentence in Chief Magistrate’s Court Criminal Case No. 403 of 2018 at Kisumu)

Ruling

1. The Applicant Martin Ochieng Otute is a convict vide Kisumu Chief Magistrate Criminal Case No. 403 of 2018 where he was charged, tried and convicted of the offence of conspiracy to commit a felony contrary to section 393 of the Penal Code and was sentenced to serve twelve (12) months imprisonment on 20th September 2023.

2. He also faced count 2 of Robbery with violence contrary to section 296(2) of the Penal Code and the alternative charge of handling stolen property contrary to section 332(1) 9) of the Penal Code.

3. He had pleaded not guilty to the charges. He was jointly charged with another Christine Adhiambo who escaped from Kodiaga W omen’s prison before Judgment was rendered.

4. The two were convicted on count 1 of conspiracy to commit a felony and the alternative count of handling stolen property. The sentences of 12 months imprisonment on each count were to run concurrently and took into account the period spent in remand. Sentence was on 20th September 2023.

5. The convict has been in custody for only about 2 months and now he seeks for sentence review on account of ill health. Before sentence, the trial court called for a probation officer’s report which was filed on 20th September 2023 with a note from Nyakach County Hospital to the effect that he suffers from lung disease.

6. In this petition for sentence review, I called for another report which was filed by Mr. William Otieno the Probation officer, which is favourable. The convict was a first offender and that he is remorseful. The report is clear that the convict and his spouse are healthy except the underlying medical conditions for which they are on medications.

7. During the oral hearing, I asked the convict when he was last in a hospital and he stated that it was in 2022; and that he wants to be out of prison because they sleep in a congested place. He was healthy looking.

8. The prosecution counsel Ms. Manyal opposed the application and submitted that the applicant is healthy and that the sentence was lenient for very serious offences carrying upto 14 years and 7 years’ imprisonment respectively.

9. I have considered the application for sentence review, the Probation reports filed and submissions for and against the application.

10. The case proceeded to hearing in full as the convict denied committing the offences. He has not appealed in a case that has been in court since 2018 taking the prosecution through the rigors of availing witnesses using public resources to court and his co-accused escaping from lawful custody.

11. The convict claims that prison is congested and I agree but that cannot be a reason for sentence review for a convicted offender who is enjoying lenient sentence imposed for felonies and from my own observation and his own concession, he is healthy and was last in hospital in 2022 save that he has some underlying medical conditions for which he can receive medical attention in prison.

12. I do not believe the convicts story that he deserves sentence review on medical grounds.

13. The sentence imposed was lawful and lenient. He had hardly served one (1) month before he filed the application herein.

14. I find no merit in the application which is dismissed.

15. This file is closed.

16. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE