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JudgmentBONIFACE KYALO YOMA VS The Republic4 min read

BONIFACE KYALO YOMA VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua

JUDGMENT ON REVISION

  1. Boniface Kyalo Yuma was charged in Makueni MCRC E256 of 2023 with stealing stock contrary to section 278 of the Penal Code. The particulars being that on the 4th day of June 2023 at around 11:30hrs in Kitise sub-location, Kitise location, Kathonzweni sub-county within Makueni county stole, two female cows both valued at Kshs.100,000/= five male cows (bulls) all valued at kshs.150,000/= and one donkey male valued a Kshs.10,000/= total amounting to Kshs.260,000/= property of Rael Wavinya Yuma.

In the alternative he was charged with handling stolen goods contrary to section 322(1) (2) of the Penal Code. The particulars being that on the 4th day of June 2023 at around 14:23 hrs in Manzani market, Kitise sub-location, Kathonzweni sub-county within Makueni county, otherwise than in the course of stealing he dishonestly retained two female cows both valued at Kshs. 100,000/= two male cows (bulls) all valued a Ksh. 150,000/= and a donkey valued at Kshs. 10,000/= total amounting to Kshs.260,000/= knowing or having reason to believe them to be stolen goods.

  1. He pleaded guilty on 5/6/2023 and was sentenced to three years imprisonment.
  2. From the facts of the case as presented:On 04/06/2023 at around 11:30 the accused went to the complainant’s compound Rael Wavinya Yuma who is his mother. He demanded to sell a cow but she refused. Accused was with others and wanted to harm her. She locked herself in the house. Accused took away 2 cows, 5 bulls and 1 donkey. The Complainant called the other son who reported the matter to the police at Kitise. The officers rushed and arrested accused and recovered the livestock, they charged accused. The photographs of the cows are before court. Bundle of photographs – PEXH 1.
  3. The accused was 1st offender, the complainant was his mother, the cows were recovered.
  4. On 14/09/2023 he filed an application for revision (during a decongestion exercise), on the grounds that other than being a first offender the complainant, his mother and him had reconciled.
  5. I asked for the lower court. Surprisingly this this took a while and the matter came to on 21st June 2024.
  6. When the file was availed I sought a sentence review report.
  7. The report by PACs revealed that the applicant is 52 years old man, his mother is 80 years old – he has two wives and five children: one lives with a disability, three are minors in form one, grade four and three respectively.
  8. It is also reported that the offence was committed in a moment of misunderstanding and unresolved family issues which the family and the local administration together with PACs are ready, willing to assist the family to resolve.
  9. The applicant’s mother has forgiven her son, has been visiting him in prison and is ready to receive him back home.
  10. The PACs officer sums up as follows:-

The appellant hails from Kitise area. The appellant is married to two wives and a father of five children. The appellant is a first offender. Prior to his conviction the appellant was a breadwinner to his family. He was convicted for a period of three years for the offence of stealing stock contrary to section 273 of the Penal Code. The victim is his mother and she pointed out that she has reconciled with the appellant and she does not object to his release on a non-custodial sentence. The appellant’s family and the local administration are ready and willing to support the appellant through supervision and monitoring if the appellant is placed on a non-custodial sentence. The victim confirmed that she received all her livestock. The home environment is conducive for his return and that he may be considered for early release. The appellant has been described as social, hardworking, responsible man and a family leader. The appellant is positive of a non-custodial sentence and he is ready and willing to adhere to the conditions. The appellant will undergo guidance and counseling session on conflict resolution. The office will oversee amicable reconciliation between the appellant and his family members.

Recommendation:

Considering the sentiments expressed by the concerned parties and in giving regard to the findings in this report, it is my opinion that the appellant is suitable for non-custodial sentence and he may be placed on Probation Order for a period the honorable court deems fit however this recommendation is subject to the discretion of the honourable court.

  1. Section 364 of the Criminal Procedure Code provides for the powers of the court on revision. It says at S. 364(1) that the court is empowered in the case of a conviction to among other actions – alter the nature of the sentence.
  2. I am of the considered view that in this case had the learned trial court sought a pre-sentence report these family issues would have revealed themselves and perhaps the sentence would have been different – the accused being a first offender and the complainant being his mother, and their respective ages.  However, I must point out that the court did no wrong as it has discretion in matters sentencing.
  3. The applicant was arrested on 4/5/2023.
  4. He is serving a three-year imprisonment. He has done over one year.
  5. The PACs report is very positive on the non-custodial sentence On the revision before me – I am satisfied that a non-custodial commends itself.
  6. The order is that the remainder of the sentence will be served on probation supervision for 18 months.
  7. During this period, he will attend the family meeting, to be called by PACs officer and the area chief, he will undergo guidance and counseling, and abide by the probation order.
  8. A Probation Order to issue accordingly.

Dated, signed & delivered this 26th July, 2024.

MUMBUA T. MATHEKA

JUDGE

    BONIFACE KYALO YOMA VS The Republic BONIFACE KYALO YOMA VS The Republic