Republic v Erick Simiyu Wanyama

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 43 years old. He is a resident of Kobos location, Kwanza sub-county in Trans nzoia County. He is the son of Josphat Wanyama who is a farmer in Trans nzoia and Jane Wanyama a housewife. He is the second born in a family of eleven siblings; Everline Wanyama, Anthony Wanyama, Martha Wanyama, Bonface Wanyama, Sophia, Aisha, Flora, Andrew, Dinnah and Harrison. The inmate is married to Faith Rop who is a shop keeper and has five children. 1st born VN who is a casual laborer, 2nd born LW who is in grade eight, 3rd born VS who is in grade three 4th born OS and 5th born IS. He attended [particulars withheld] school where he dropped out in class seven. He later did a driving course in 2006 and was working as a motor vehicle driver for heavy commercial at the time of his arrest. He has a fixed place of abode at Kobos Location, Kwanza Sub-county in Trans nzioa County. Prison Assessment, Rehabilitation, And Re-integration: The inmate is involved in tailoring at the prison and has a certificate in Christian discipleship Program after training in prison. Prison records indicate that the inmate is fit for release. The local administrators are not against the inmate serving his remaining sentence in the community. The family and community are willing to be part of his rehabilitation. Offenders Attitude Towards Non-custodial Measures The inmate is remorseful and takes responsibility for his offence. He is determined to start a carpentry business in the community. He requests to be allowed to serve the remaining period in the community. Recommendations My Lord, the inmate is remorseful, has a fixed place of abode, and the home and community environment are favorable for his rehabilitation. His sentence can be reviewed and be placed on probation orders for a period of nine months. During this period, we shall endeavor to offer him guidance and counseling on positive life skills, alternative legal ways of earning a living and ensure that he abides by the conditions of the Probation order. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11017/eng@2025-07-24 2

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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 VCG. 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). 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11017/eng@2025-07-24 3

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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 motor vehicle contrary to section 268 as read with 275 of the Penal Code and the effect of mitigating factors renders this court to review the sentence for purposes of rehabilitating the offender as a consequence he is placed in Community Service Order for 9 months. DATED, SIGNED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2025 .................................... R. NYAKUNDI JUDGE M/s Sidi for the state https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11017/eng@2025-07-24 4

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