REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. E140 OF 2024
FRANCIS KYALO NGETA.......................................................................APPLICANT
-VERSUS-
REPUBLIC..........................................................................................RESPONDENT
RULING
Background
1. The Applicant herein was charged with the offence of dealing in meat of wildlife species contrary to Section 98(1) of the Wildlife Conservation and Management Act 2013.
2. The particulars are that the Applicant and four others on 21st August 2020 at around 2230Hrs at Kapiti Ranch Fram within Machakos County, jointly were found dealing in meat of a wildlife species namely wildebeest packed in five sacks weighing approximately 50kgs without a permit.
3. The Applicant pleaded not guilty to the charges and the matter was set down for full trial. The Applicant was convicted and sentenced to a fine of Kshs.200,000/= in default 2 years imprisonment on 15th July 2024.
4. The Applicant has filed the present application for review of sentence to a non-custodial sentence for the reminder of the custodial sentence. The Applicant asserted that he is a first-time offender and the sole bread winner to his family, he is remorseful and regrets his actions
5. The Respondent opposed the said application and in submissions dated 16th April 2025 contended that the prosecution proved its case beyond reasonable doubt and convicted the Applicant and sentenced him rightfully to a custodial sentence for his actions. The Respondent urged the court not to interfere with the custodial sentence but to dismiss the application.
6. I have carefully considered the application, the submissions by the Respondent and the Probation Officer’s Report dated 28th April 2025 and filed in court on even date. The issue for determination is whether the Applicant’s application is merited.
7. Section 3 (1) (a) and (b) of the Community Service Order Act No. 10 of 1998 stipulates that:-
"1. Where any person is convicted of an offence punishable with—
a. imprisonment for a term not exceeding three years, with or without the option of a fine; or
b. imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service."
8. Further, Section 3(10) of the Community Service Order Act provides that:-
"Subsection (1) of this Act shall not apply to a person who is convicted under the following legislation—
a. the Anti-Corruption and Economic Crimes Act, 2003 (No 3 of 2003);
b. the Sexual Offences Act, 2006 (No 3 of 2006);
c. the Prohibition of Female Genital Mutilation Act, 2011 (No 32 of 2011);
d. the Prevention of Terrorism Act, 2012 (No 30 of 2012);
e. the Proceeds of Crime and Anti-Money Laundering Act, 2009 (No 9 of 2009); or
f. the Bribery Act, 2016 (No 47 of 2016)."
9. This court is alive to the fact that there is currently an exercise for decongestion of prisons, which exercise will be conducted continuously pursuant to the directions of the Hon Chief Justice Martha Koome that were issued on December 7, 2022.
10. As the offence the Applicant was been charged with is not included in Section 3(10) (a)- (f) of the Community Service Order Act, it is my considered view that the Applicant qualifies for sentence review under the said Act and in line with the directions of the Hon Chief Justice Martha Koome.
11. The Probation Officer’s Report dated28/4/2025 is also positive and the Victim has no objection to the Applicant’s sentence being reviewed. The report recommends that the Applicant be admitted to Community Service Order for two years.
Disposition
12. The upshot of this court’s decision is that the Applicants’ undated motion lodged on May 6, 2022 is merited and the same be and is hereby allowed as follows:
a) The Applicant’s remaining custodial sentence is reviewed and the Applicant is hereby sentenced to serve a two years Probation Order at Machakos Town Probation Offices.
b) The Applicant will henceforth be released from custody in order that he may proceed to serve the non-custodial sentence unless he is otherwise lawfully held.
c) The Applicant is ordered to desist from repeating the offence and to adhere to instructions by the supervising Probation Officer during the probation sentence, failure to which the orders herein will be discharged and the Applicant’s sentence shall be revert to custodial sentence.
13. Orders accordingly. This file is closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of:
In person........... for Applicant
Ms Agatha.............................. for State
Milly Grace..... Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. E140 OF 2024
FRANCIS KYALO NGETA.......................................................................APPLICANT
-VERSUS-
REPUBLIC..........................................................................................RESPONDENT
RULING
Background
1. The Applicant herein was charged with the offence of dealing in meat of wildlife species contrary to Section 98(1) of the Wildlife Conservation and Management Act 2013.
2. The particulars are that the Applicant and four others on 21st August 2020 at around 2230Hrs at Kapiti Ranch Fram within Machakos County, jointly were found dealing in meat of a wildlife species namely wildebeest packed in five sacks weighing approximately 50kgs without a permit.
3. The Applicant pleaded not guilty to the charges and the matter was set down for full trial. The Applicant was convicted and sentenced to a fine of Kshs.200,000/= in default 2 years imprisonment on 15th July 2024.
4. The Applicant has filed the present application for review of sentence to a non-custodial sentence for the reminder of the custodial sentence. The Applicant asserted that he is a first-time offender and the sole bread winner to his family, he is remorseful and regrets his actions
5. The Respondent opposed the said application and in submissions dated 16th April 2025 contended that the prosecution proved its case beyond reasonable doubt and convicted the Applicant and sentenced him rightfully to a custodial sentence for his actions. The Respondent urged the court not to interfere with the custodial sentence but to dismiss the application.
6. I have carefully considered the application, the submissions by the Respondent and the Probation Officer’s Report dated 28th April 2025 and filed in court on even date. The issue for determination is whether the Applicant’s application is merited.
7. Section 3 (1) (a) and (b) of the Community Service Order Act No. 10 of 1998 stipulates that:-
"1. Where any person is convicted of an offence punishable with—
a. imprisonment for a term not exceeding three years, with or without the option of a fine; or
b. imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service."
8. Further, Section 3(10) of the Community Service Order Act provides that:-
"Subsection (1) of this Act shall not apply to a person who is convicted under the following legislation—
a. the Anti-Corruption and Economic Crimes Act, 2003 (No 3 of 2003);
b. the Sexual Offences Act, 2006 (No 3 of 2006);
c. the Prohibition of Female Genital Mutilation Act, 2011 (No 32 of 2011);
d. the Prevention of Terrorism Act, 2012 (No 30 of 2012);
e. the Proceeds of Crime and Anti-Money Laundering Act, 2009 (No 9 of 2009); or
f. the Bribery Act, 2016 (No 47 of 2016)."
9. This court is alive to the fact that there is currently an exercise for decongestion of prisons, which exercise will be conducted continuously pursuant to the directions of the Hon Chief Justice Martha Koome that were issued on December 7, 2022.
10. As the offence the Applicant was been charged with is not included in Section 3(10) (a)- (f) of the Community Service Order Act, it is my considered view that the Applicant qualifies for sentence review under the said Act and in line with the directions of the Hon Chief Justice Martha Koome.
11. The Probation Officer’s Report dated28/4/2025 is also positive and the Victim has no objection to the Applicant’s sentence being reviewed. The report recommends that the Applicant be admitted to Community Service Order for two years.
Disposition
12. The upshot of this court’s decision is that the Applicants’ undated motion lodged on May 6, 2022 is merited and the same be and is hereby allowed as follows:
a) The Applicant’s remaining custodial sentence is reviewed and the Applicant is hereby sentenced to serve a two years Probation Order at Machakos Town Probation Offices.
b) The Applicant will henceforth be released from custody in order that he may proceed to serve the non-custodial sentence unless he is otherwise lawfully held.
c) The Applicant is ordered to desist from repeating the offence and to adhere to instructions by the supervising Probation Officer during the probation sentence, failure to which the orders herein will be discharged and the Applicant’s sentence shall be revert to custodial sentence.
13. Orders accordingly. This file is closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of:
In person........... for Applicant
Ms Agatha.............................. for State
Milly Grace..... Court Assistant