Onyiego v Republic (Criminal Revision E028 of 2024) [2024] KEHC 4317 (KLR) (11 April 2024) (Ruling) Neutral citation: [2024] KEHC 4317 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET CRIMINAL REVISION E028 OF 2024 RN NYAKUNDI, J APRIL 11, 2024 BETWEEN QUICKMATT ONYIEGO ....................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code. The particulars of the offence are that on 30th December, 2023 at around 08:00 hours in Kibulgeny village at Soy sub-county within Uasin Gishu county, without lawful excuse uttered words in Kiswahili “Kama hauna pesa leo nitafanya kitu yenye itafanya niuliwe ama nipelekwe jela tena.” While having in his hands a sharp stick and a broken piece of bottle, threatening to kill Isabella Onyiego. 2. The applicant pleaded guilty to the offence before Hon. C. Kesse on 2nd January, 2024 and as a consequence, he was convicted on his own plea of guilty and sentenced to serve 6 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 probation report filed on 25th March, 2024. The report indicates that the applicant is a third-year student at Maseno University undertaking Bachelor of Art in Kiswahili. His mother happens to be the complainant and she indicated that she has forgiven him and she is willing to take part in the re-integration process as she wishes to return him back to university. The report recommended that the applicant should be allowed to carry out unpaid public work at Kiplombe primary for a period of 2 months. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4317/eng@2024-04-11 1
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5. 6. 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. I have considered the offence in question and the aggravating factors. The sentencing objectives in Kenya have been captured in the Sentencing guidelines 2023 to be the following: i. Retribution: to punish the offender for his/her criminal conduct in a just manner. ii. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. iii. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person. iv. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages. v. Community protection: to protect the community by incapacitating the offender. vi. Denunciation: to communicate the community’s condemnation of the criminal conduct. vii. Reconciliation: To mend the relationship between the offender, the victim and the community. viii. Reintegration: To facilitate the re-entry of the offender into the society. 7. My considered view is that the present case satisfies the above criteria for reasons that the applicant is a first offender, he is remorseful, he pleaded guilty and the complainant is not opposed to his release. It appears that the parties have had a victim-offender mediation for the mother forgive him. Additionally, the applicant is a student who ought to go back to school and continue with his studies. All these factors considered wholesomely call for a non-custodial sentence. 8. This court is clothed with wide powers under article 165 (6) and (7) of the Constitution. and section 362 as read with section 364 of the CPC to look at the legality of the order on sentence by the trial court. Just a glance of it shows clear mitigation factors which reduces the seriousness of the offence or the culpability of the applicant. Again, with no special order of priority they include the following: a. Youth of the applicant b. Immaturity of the applicant c. The previous good character of the applicant d. Restitution of part of the stolen property to the complainant e. A plea of guilty entered by the applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4317/eng@2024-04-11 2
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9. f. Cooperation with the police by the applicant after the commission of the offence g. Expression of remorse by the applicant before th trial court In the upshot and in considering the objectives of sentencing in totality, I am inclined to place the applicant on a probation period of two (2) months C.S.O. In the course of serving non-custodial sentence through the leadership of the probation officer, a meeting be convened to promote victim offender mediation. Thereafter a report be filed with the court on the outcome of the mediation. SIGNED, DATE AND DELIVERED AT ELDORET THIS 11TH DAY OF APRIL 2024. .................. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4317/eng@2024-04-11 3
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