Abraham Lodwar v Republic

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. Turning to the issue of sentence the court wants to remind itself and the Lower Court that sentencing should always follow the provisions of the statute, the Sentencing policy guidelines published in 2023 and the Principles laid down in the various case law. It is trite that the basis on which Appeal’s Court exercise jurisdiction to review or overturn the sentence is basically on factors of the sentence being manifestly excessive or in adequate likely to send shock waves to the public and the offender. The constitution 2010 also enacted Article 25 (a) dealing with rights and fundamental freedoms guarantees of citizens from torture and cruel, inhuman, or degrading treatment or punishment. That fundamental right should be borne in mind in sentencing an offender upon conviction for that particular offence. In some also as a matter of principle in sentencing any verdict, sanction or punishment must be proportionate to the crime for which the accused person has been convicted. It is also clear from the objectives and principles of sentencing, that the accused being a first offender or has entered a plea of guilty to the offence should count for something to reduce his or her sentence. Generally, for first offenders, it is very unlikely that if they are placed on non-custodial sentence they would be reoffending hence impacting negatively public law and order in our communities. The trial courts ought to focus more on rehabilitation of offenders than deterrence with lengthy sentences that may not aid in the transformation of the offender. There are various sentencing provided in our penal system which are rarely invoked as measures to punish crime by the trial courts. The non-custodial measures are fashioned around the Tokio rules 8.1 &8.2 (a-m) which provide inter-alia Verbal sanctions, such as admonition, reprimand and warningConditional dischargeStatus PenaltiesEconomic sanction and donentary penalties, such as fines and day-finesConfiscation or an expropriation orderRestitution to the victim or a compensation orderSuspended or differed sentenceProbation and judicial supervisionA community service orderReferral to an attendance centerHouse arrestAny other mode of non-institutional treatment, orSome combination of these measures. Just as the offender’s person need and interests have to be weighed against society’s interest at the pretrial stage, so the offenders “rehabilitative needs” at the sentencing stage must be balanced against eh need to protect society and “the interests of the victim the list of non-custodial measures in Rule 8.2 while not exhaustive, contains a wide range of non-custodial measures to suit different circumstances and achieve different objectives 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. The facts in the instant case suggest an offence that can be punishable by a non-custodial sentence from the onset, particularly because the items stolen were recovered. It is my considered view that the period served by the applicant in prison has shaped his character and he has appreciated the importance of being a law-abiding sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5229/eng@2024-05-17 2

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8. Having gone through the record, and conscious of the objectives of sentencing, I am persuaded that the applicant has learned a lesson for the duration served in custody. The sentence be and is hereby reviewed to the period already served. The applicant shall be set at liberty, unless he is otherwise lawfully held. SIGNED, DATE AND DELIVERED AT LODWAR THIS 17TH DAY OF MAY 2024. In the presence of:Mr. Bungei K. Jonathan for the State Appellant ……………………………………. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5229/eng@2024-05-17 3

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