Jackline Jelimo v Republic

3. c. The Applicant’s actions were motivated by economic hardship and maternal necessity, not criminal intent. d. The Applicant has expressed genuine remorse and undertaken not to repeat the offence. e. The Applicant has reflected on her conduct and demonstrated a willingness to pursue lawful means of livelihood. f. The Applicant was sentenced to one (1) month’s imprisonment and has already served four (4) days thereof. g. Continued incarceration imposes disproportionate hardship on innocent children, contrary to the best interests of the child principle. h. This Honourable Court is vested with revisionary, supervisory, and constitutional jurisdiction to intervene where a sentence occasions injustice or undue hardship. The application is supported by an affidavit sworn by Anne Murugi Munyua who deponed as follows: a. That I am the Advocate on record for the Applicant herein and competent to swear this Affidavit. b. That I am conversant with the facts and circumstances giving rise to this Application, having obtained the same through professional engagement and interviews conducted within the correctional facility. c. That the Applicant, Jackline Jelimo, is a first-time offender and is unmarried. d. That the Applicant is the sole caregiver to her two minor children: a. Maya Cheptoo, aged five (5) months, whom she is currently breastfeeding; and (b) Jayden Kipchumba, aged five (5) years. e. That the children are wholly dependent on the Applicant for care, nutrition, and emotional support. f. That the Applicant committed the offence while under acute economic distress in an attempt to provide food and basic necessities for her children. g. That the Applicant has acknowledged her wrongdoing, expressed sincere remorse, and demonstrated insight into her actions. h. That the Applicant has committed to pursuing lawful and sustainable means of livelihood upon release. i. That the Applicant was sentenced to one (1) month’s imprisonment and has already served four j. (4) days, which has been sufficient to impress upon her the gravity of the offence. k. That continued incarceration will occasion disproportionate hardship to innocent children, particularly the breastfeeding infant. l. That I verily believe that the objectives of sentencing—especially rehabilitation, proportionality, and social reintegration—would be better served through a non-custodial or community-based sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18908/eng@2025-12-22 2

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4. m. That I therefore humbly pray that this Honourable Court urgently reviews the sentence herein and grants a resentencing determination culminating in the Applicant’s immediate release, or in the alternative, a compassionate and proportionate sentence. n. That this Affidavit is sworn in good faith in the interests of justice, dignity, and humanitarian consideration. In addition, the Probation Officer’s Report was responsive in recommending for a non-custodial sentence on C.S.O for the balance of the period computed at 2 weeks to be served at Kapyemit Chief’s Office. Decision 5. The review of sentence is based on Article 50 (2) (p) & (q) of the Constitution and Section 362 as read with 364 of the Criminal Procedure Code. This Court draws its jurisdiction from Article 165(6) & (7) of the Constitution. 6. The other binder provisions in sentencing include Article 10 & 27 of the Constitution and in addition adherence to domestic and International Law which is part of the sources of Kenyan Law under Article 2 (5) & (6) of the Constitution. The framework of it is provided for in our Sentencing Policy Guidelines as herein reiterated:Adherence to domestic and international law with due regard to recognized international and regional standards on sentencing: Domestic law sets out the precise sentences to be imposed for each offence that courts must adhere to. In addition, international legal instruments, which have the force of law under Article 2 (6) of the Constitution of Kenya, should be applied. Reference should also be made to recognized international and regional standards and principles on sentencing, which though not binding, provide important guidance during sentencing. Relevant international and regional legal instruments and guidelines include but are not limited to: a. African Charter on the Rights and Welfare of the Child (adopted in 1990, entered into force on 29th November 1999) OAU Doc. CAB/LEG/24.9/49. b. African Union Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (proclaimed by the African Commission on Human and Peoples’ Rights) DOC/OS (XXX) 247. c. Convention on the Rights of the Child (adopted and opened for signature, ratification and accession by UNGA Resolution. 44/25 of 20th November 1989, entered into force on 2nd September 1990). d. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature, ratification and accession by UNGA Resolution. 39/46 of 10th December 1984, entered into force on 26th June 1987). e. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (adopted by UNGA Resolution 40/34 of 29th November 1985). f. Guidelines for Action on Children in the Criminal Justice System (recommended by ECOSOC Resolution. 1997/30 of 21st July 1997). g. International Covenant on Civil and Political Rights (adopted by UNGA Resolution 2200 A (XXI) of 16th December 1966, entered into force on 23rd March 1976) 999 UNTS 171 (ICCPR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18908/eng@2025-12-22 3

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h. Kampala Declaration on Prison Conditions in Africa and Plan of Action (adopted by a Conference of African Countries on 21st September 1996). i. Ouagadougou Plan of Action Adopted on Accelerating Prisons and Penal Reforms in Africa (adopted by the African Commission on Human and Peoples’ Rights on 20th November 2003) ACHPR /Resolution 64 (XXXIV) 03). j. Standard Minimum Rules for the Treatment of Prisoners (adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and approved by ECOSOC Resolution 663 C (XXIV) of 31st July 1957 and 2076 (LXII) of 13th May 1977). k. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) (adopted and proclaimed by the UNGA Resolution 45/113 of 14th December 1990). l. United Nations Rules for the Protection of Juveniles Deprived of their Liberty (adopted by UNGA Resolution 45/113 of 14th December 1990). m. United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures 1985 for Women Offender (adopted by UNGA Resolution 65/229 of 21st December 2010). n. United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) (adopted by UNGA Resolution 45/110 of 14th December 1990). o. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (adopted by UNGA Resolution 40/33 of 29th November 1985). 7. In this respect the Court also shall be guided by the Sentencing Policy Guidelines of the Judiciary which provides for the aims and principles of sentencing inter alia:Retribution – punishment is justified merely because the offender has committed a wrong.Deterrence – punishment is justified in order to clear the offender from committing further crimes in the future and to deter other members of society in general.Rehabilitation – the offender needs to be rehabilitated so that he will behave in a socially acceptable manner.Incapacitation – justifies the incarceration of the offender for the protection of society.Condemnation – the infliction of punishment upon the guilty person is the symbolic condemnation by society of the individual.Proportionality: The sentence meted out must be proportionate to the offending behavior. The punishment must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.Equality/Uniformity/Parity/Consistency/Impartiality: Same sentences should be imposed for same offences committed by offenders in similar circumstances.Accountability/Transparency: The reasons and considerations leading to the sentence should be clearly set out and in accordance to the law and the sentencing principles laid out in these guidelines.Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process. 8. As structured approach to sentencing review focusing of moving offenders from custody to noncustodial sentences by assessing proportionality, offender circumstances (vulnerabilities, family impact, and the effectiveness of alternatives, (probation and community service). The key principles involve considering in this case the child’s best interest for the very foundation that their human rights are individualized and they should not be punished through proxy for offences committed by their parents. 9. From the application on review this court is bound to consider the mitigating factors as they apply to each individual case in exercising discretion to individualize the respective sentences. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18908/eng@2025-12-22 4

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Again in no order of priority they include the following:Youth of the offenderImmaturity of the offenderThe mental state of the offenderThe previous good character of the offenderAbsence of premeditationWhere appropriate, whether reparation has been madeThe pressures under which the offence was committed (Such as provocation, diminished responsibility, emotional stress or other partial excuse).Any incidental losses which the offender may have suffered as a result of the conviction (Such as loss of employment).The offender’s capacity for reformThe offender’s role in the commission of the offence, where more than one offender was involvedCo-operation with the police by the offender after commission of the offencePersonal characteristics of the offender, such as physical disability or the likeFamily background of the offenderExpressions of remorse by the offender. 10. I have given due regard to the law on sentencing as prescribed by Parliament together with the Judiciary Sentencing Policy Guidelines which sets out the various aims and principles to be considered in the process of making a decision by a Judge or Magistrate as to whether to pass a custodial versus a noncustodial sentence. From the record there are certain key factors which favor the applicant from the word go to benefit with an order of non-custodial sentence as against custodial sanctions. I am therefore in agreement that her sentence be reviewed by setting aside the custodial sentence so that she can serve the remainder of the period on C.S.O at Kapyemit Chief’s Office. This therefore requires that the Officer in Charge Prisons do remove the Applicant from the custodial sentence wards, and have her handed over to the Director of Probation Services who will supervise the non-custodial sentence of two weeks and thereafter file a report of completion with the Deputy Registrar of the High Court at Eldoret. It is so ordered. GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS 22ND DAY OF DECEMBER 2025. ………………………………….. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18908/eng@2025-12-22 5

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