Tom Okoth v Republic

his sentence under a non-custodial arrangement. Interviews were conducted with the inmate at Eldoret GK Prison, his family members. In addition, the lower court file was perused. Current home and personal circumstances The inmate hails from Homa Bay County and is the son of the late Naftali Aroko and Elida Akeyo. He has one sibling, a sister named Caroline Anyango. He is married to two spouses, Lensa Akinyi and Gladys Serem, who both reside at the family home in Kasipul Kabondo sublocation, where they are raising their three children. He dropped out of school at form two and has since relied on casual employment. Over time, he acquired skills in welding and fabrication, which formed the basis of his informal work prior to his arrest. At the time of his arrest, he was living alone in Kipkaren estate in Eldoret City, although he regularly visited his family in Homa Bay and maintained strong ties and consistent contact with them. Prison rehabilitation The inmate has been in custody for approximately two months, a period too brief for significant rehabilitation programs to be undertaken. Nonetheless, he has gained a clear understanding of the seriousness of his actions and the consequences associated with the loss of personal freedom. During this period, he has been participating in farm work within the prison, specifically assisting in the ongoing maize harvest. Offienders' attitude and impact of imprisonment The inmate has expressed remorse for his actions. He acknowledges that his imprisonment has had a significant effect on his life. He further recognizes the importance of respecting other people's property. Conclusion Your Lordship, the inmate has served only two months of his two-year custodial sentence. Although he is a family man with two spouses and three children who rely on him, and despite his background in casual work and welding, the gravity of the offence cannot be understated. He was convicted for damaging and unlawfully removing water taps from Moi Teaching and Referral Hospital, a critical public institution. While our inquiry confirms that this was a single incident, it was nonetheless a deliberate and well-planned act carried out under the guise of collecting scrap metal. Recommendation Given the seriousness of the offence and its potential impact on essential public services, continued incarceration remains necessary as a deterrent measure. In light of the short duration served so far, he is not suitable for a non-custodial sentence at this stage. Decision 5. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17295/eng@2025-11-26 2

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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. 6. The Community Service Orders Act provides this Court with discretion to order an offender to perform unpaid community service as an alternative to incarceration. This sentencing option becomes available where an accused person is found guilty of an offence carrying a maximum punishment of three years' imprisonment. The Act further permits courts to exercise this discretion even for offences attracting sentences exceeding three years, provided the court deems it appropriate that the sentence, or part thereof, be served through unpaid public works within the community rather than through confinement. 7. Upon careful consideration of the circumstances surrounding this case, including the nature of the offence charged and the Applicant's personal background as outlined in the Sentence Review Report, I find that this matter appropriately falls within the ambit of the Community Service Orders Act. The Applicant has served two months in custody and has demonstrated remorse for his actions. While the Probation Officer recommended continued incarceration, I am persuaded that the rehabilitative objectives of sentencing can be better achieved through community-based sanctions. Accordingly, I hereby order that the Applicant shall serve a twelve (12) months sentence by performing community service under the supervision of the locality Chief's Office. The supervising officer shall, through the probation department, file monthly progress reports with this Court. Should the Applicant breach any condition of this community service order, the same shall be liable to cancellation, and the custodial sentence shall be reinstated forthwith. 8. It is so ordered. SIGNED, DATE AND DELIVERED AT NOVEMBER THIS 26TH DAY OF NOVEMBER, 2025. ……………………………………. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17295/eng@2025-11-26 3

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