Shaban Okila alias Johnston Okila v Republic [2017] KEHC 3580 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

MISC CRIMINAL APPLICATION NO. 60 OF 2017

SHABAN OKILA ALIAS JOHNSTON OKILA......................................................APPLICANT

VERSUS

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

JUDGMENT

1. When this appeal came up for hearing, counsel for the DPP informed the Court that they had received a reconciliation note and they wished to consider it before the matter could proceed to hearing of the appeal and indicated they did not oppose reconciliation.

2. The appellant indicated his willingness to have the Court consider reconciliation pointing out that the complainant in his criminal proceedings the subject of his trial for which appeal  is preferred was his mother.

3. The Court then directed that the Probation Officer to file report on the appellant and the circumstances of the case for purposes of consideration of Community Service Order.  The report, which was filed on 24/8/2017, was positive for community service order.

4. The appellant was sentenced to imprisonment for 3 years for the offence of malicious damage to property contrary to section 339(1) of the Penal Code on 21/11/2016.  At the time of the hearing in this Court the appellant had served 9 months of the 3-year sentence, which with possible remission   would be 24 months.

5. Section 3 of the Community Service Orders Act requires the Court to consider Community Service Order as suitable sentence for cases where imprisonment is for a period of 3 years or less.

6. In addition, Article 159 of the Constitution requires the Court to promote alternative dispute resolution mechanism.

Determination

7. Having considered that the nature of the offence herein is one of malicious damage of property of the appellant’s own mother and the fact as considered by the Probation Officers’ report of 24/8/2017 and confirmation by the said appellant before the Court that she had forgiven the appellant whom she considered had learnt his lesson, and taking into account section 3 of the Community Service Order Act, I agree with the Probation Officer’s Recommendation for a Community Service Order in this matter.

Order

8. Accordingly, the appellant who has already served 9 of the possible 24 months (with remission) will now serve Community Service for a period of 12 months at a place to be determined by the Community Service Officer, Baringo.

9. For this reason, the sentence of imprisonment for 3 years imposed by the trial Court is, pursuant to section 364 of the Criminal Procedure Code,  revised accordingly.

10. Appeal No. KBT CR App No. 175/2017 is marked determined in terms of the orders herein.

DATED AND DELIVERED THIS 13TH DAY OF SEPTEMBER, 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Appellant in person

Ms Onkoba for DPP