Dennis Abdalla v Republic

3. The same constitution in Art 50 (6) (a) (b) expressly states as follows: A person who is convicted of a criminal offence may petition the High Court for a new trial if- 4. a. The person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and b. new and compelling evidence has become available. This application is based on the social inquiry report dated 22nd July 2025 carried out by the probation officer which contextualized the issues as follows: Sources of information prison records, inmate families, community and the complainant Current Family And Personal History Family Background. The inmate is the third-born in a family of six children, raised by Paul Murogo, a mason, and Rodah Adema, a casual laborer. His parents separated in 2010, resulting in a dysfunctional family structure. Despite this, he maintains a cordial relationship with his family. The family relies on small-scale farming on a one-acre plot in Kaptik Village, and none of his relatives have any known criminal history. Personal history. The inmate was born in 2005 in Bidii Village, Moiben Location, attended Kimiliet Primary School up to Class Eight but did not sit for his KCPE examinations due to a lack of parental guidance. After dropping out, he stayed home to assist his father with domestic work and peasant farming. He is single, without any parental responsibilities, and currently resides in a one-room semi-permanent rented house in the Bidii area. He is in good health and does not consume alcohol. This inquiry further established that the offender has no formal education or professional training and depends entirely on casual labor for his livelihood. Prison Assesment Rehabilitation And Re-intergration During his incarceration, the offender has demonstrated commendable efforts toward rehabilitation. He was attached to prison farm where he learnt basic farming skills which he indicates will assist him during his reintegration. The offender expresses sincere remorse for his actions and affirms that he has undergone significant personal transformation. Prison authorities hold him in high regard and support his early release. Offenders'attitude Towards Non-custodial Sentence The inmate admits to having committed the offence and states that his time in prison has taught him a valuable lesson. He describes himself as a reformed individual and expresses a strong desire to turn his life around. He is appealing for a non-custodial sentence to enable him reunite with his life and promises not to reoffend. Conclusion Your Lordship, the inmate is 20 years old and a permanent residence of Bidii village within Moiben Location. He is pleading for a non-custodial sentence to enable him reunite with his family and promises not to reoffend. The prison authorities regard the inmate highly. The inmate was attached to the prison farm and has learnt basic farming skills which will https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10958/eng@2025-07-24 2

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assist him during his rehabilitation. He has adhered to the orders and way of life of prison. The complainant is not opposed to his request for a community based rehabilitation and hopes that he has learnt his lesson in prison. Further, the family members are willing to assist with his reintegration and rehabilitation. Recommendation Your Lordship, considering that the inmate's home environment is conducive for his rehabilitation. Further, local administrators are willing to be involved in the process of his rehabilitation. In view of the foregoing, he may be place on a 20 months' Community service at Meibeki Primary school under supervision of the Head teacher. 5. The role of non-custodial sentence should underpin our penal system in which custodial sentence remains a recourse of last resort in punishing offenders. The sentence policy guidelines of the judiciary 2023 provides a framework in which Judicial discretion should be exercised to arrive at a fair and proportionate sentence on individualized circumstances. The objectives and principles of sentencing are well articulated and defined as follows: a. Retribution: to punish the offender for his/her criminal conduct in a just manner. b. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. c. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person. d. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages. e. Community protection: to protect the community by incapacitating the offender. f. Denunciation: to communicate the community’s condemnation of the criminal conduct. g. Reconciliation: To mend the relationship between the offender, the victim and the community. h. Reintegration: To facilitate the re-entry of the offender into the society. 6. In a documented research by Chrispinus Adenya Aben entitled Factors Influencing Success of NonCustodial Sentence in Kenya: A Case of Kilifi District in Kilifi County 2011. He made the following observations: First and foremost prison population around the world is increasingly placing enormous financial burdens on governments. There is growing recognition that imprisonment does not achieve some of its most important stated objectives, as well as being harmful to offenders, families and in the long term to the community (UNODC, 2006). 7. It came out clearly from his research; Supervision is an essential component of community based correction with the primary objective of enforcing compliance with the conditions of release to minimize risk to the public and to re-integrate the offender into the law abiding lifestyle. Lax supervision and failure to deal firmly with those who persistently violate the terms of release can bring an entire system into disrepute in criminal justice. (Killinger GG and Cromwell P.F, 1990). “The law is without doubt a remedy for great evils, yet it brings with it evils of its own”. (Subbrano V.C.G. 1993). There are three primary gateways in the criminal justice. The first is at the police at the initial stage of apprehension, the second is at the court after the determination of guilt and passing of a sentence and the third is the gateway to the community at the conclusion of the sentence (Johnson R, 2003). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10958/eng@2025-07-24 3

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8. Rule 8.2 of the Tokyo rules on non-custodial affirm that courts or sentencing authorities may dispose off cases in any of the following ways-verbal sanctions, admonitions, reprimands and warning, conditional discharge, status penalty, economic sanctions and monetary restitution, restitution to the victim or compensation order, confiscation or expropriation, suspended or deferred sentence, probation and judicial supervision, community service order, house arrest and any other noninstitutional treatment. Supervision is critical in realization of sentencing objectives. This is operationalized as poor and laxed supervision leads to reconviction and abscondism. The quality and number of contacts between the offender are key in reforming, re-integrating the offender. The caseload per officer and the frequency of contacts between the officer and the probationer determines the level of intensity of supervision based on the risk category of the probationer. The community plays key role in having offenders change. Community attitude, home environment is deterministic of offender’s potential to change. 9. Time has come to re-conceptualize the effectiveness of custodial sentencing to promote a clear, fair, uniform and consistent approach by all levels of courts. A theme of any review of sentence must not lose sight of the objectives and sentencing. Am of the consider view that an effective sentence must also serve to communicate to society that justice has been done and the wrong doer punished and denounced for his or her conduct. Generally speaking over time I have been involved in the practice of law as a trier of criminal cases they is no probative evidence that the harsher, punitive or severe the sentence does provide greater marginal deterrent effects. 10. Sentencing is a discretionary process mainly exercised by trial courts who have the advantage to appreciate the circumstances of the offence and how it applies to the sentencing objectives and principles within the regulatory framework of our sentencing policy guideline 2023. This court is being asked to review the custodial sentence and have it substituted with non-custodial sentence. As I appreciate the record and the impugned decision on sentence I bear in mind that this is one area of law which involves the weighing of may complex factors, it will always be possible to point to some factors which should arguably have been taken into account or left out of account; even if they should have been, the court should not intervene unless it is convinced that this would have resulted in the decision going the other way. 11. There is a big outcry amongst our communities and society at large on the level of inconsistency, disparity, unfairness, and disproportionate verdicts on sentence being imposed by the trial courts and on even on appeal which do not reflect the sentencing objectives and principles in our policy document. As if that is not enough the letter and spirit of our sentencing scheme seems to depart from the legislatures intention and vision in the criminal administration of justice. Sentencing in Kenya ought to be fair and proportionate to the crime being prosecuted by the state as against the accused persons or defendant. These canons on fair and proportionate sentence requires that:All relevant factors of a case must be considered including the seriousness of the offence, the impact on the victim and others affected by the case, and the circumstances of the offender;Sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case;Reasons for sentencing decisions must be stated as clearly and openly as circumstances permit;Sentencing decisions must be made lawfully and sentencers must have regard to any sentencing guidelines which are applicable;People should be treated equally, without discrimination; andSentencing decisions should treat similar cases in a similar way, assisting consistency and predictability 12. It is vital that the test of the seriousness of the offence when weighed with the applicant being a first offender, he pleaded guilty to the allegations on stealing contrary to section 268 as read with section 275 of the penal code and the effect of mitigating factors renders this court to review the sentence for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10958/eng@2025-07-24 4

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purposes of rehabilitating the offender as a consequence he is placed in community service order for 20 months at Meibeki Primary school under supervision of the head teacher. DATED, SIGNED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2025 …………………..………….. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10958/eng@2025-07-24 5

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