1. The Applicant, Moses Kipkoech Ngetich, was charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code. The particulars of the offence were that on 20th April 2023 at Leldet Village in Kipkelion sub-county within Kericho County without lawful excuse uttered the words ”nitaua huyo DC ako wapi” threatening to kill John Kibet Tanui.
2. He faced secont count malicious damage to property contrary to section 339(1) as read with Section 339(2) of the Penal Code the particulars were that on the 20th day of April 2023 at Leldet Village in Kipkelion Sub-County within Kericho County willfully and unlawfully destroyed main house door shutters, kitchen door shutter and flower pot valued at Kshs. 10,000 the property of John Kibet Tonui.
3. He face a third charge of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95(1)(b) of the penal code particulars were that on 20th April 2023 at Leldet Village in Kipkelion Sub-County within Kericho County created disturbance in aa manner likely to cause a breach of the peace by chasing Joseph Kibet Tonui out of his home while armed with a panga.
4. Upon conclusion of the trial, the Applicant was found guilty on Count I and Count II, on 31st August 2023, and was sentenced to serve five (5) years' imprisonment for Count 1 and one (1) year in Count II. The sentences were to run concurrently. He has remained in custody since the date of his sentence.
5. The Court has considered the Applicant's request for review of sentence together with the Sentence Review Report prepared by the Probation and Aftercare Service.
6. The report indicates that while serving his sentence, the Applicant has demonstrated rehabilitation progress and has family support. He indicated medium risk levels of recidivism however with close supervision under guidance and counselling there are high probability he will embrace good morals and social control in his associations with the community.
7. He has a supportive family system willing to receive and assist in his settling and integration. He has shown positive strides of rehabilitation and readiness to embrace good behavior in the community. He has gained trade skills which can get him purposefully engaged in the community and is suitable to benefit from a sentence review.
8. I am alive to the fact that the Applicant was convicted of the serious offences as stated above. The custodial sentence imposed by the trial court was lawful and appropriate in the circumstances of the case. However, sentencing serves multiple objectives, including punishment, deterrence, rehabilitation, protection of the public and restorative justice. Where subsequent developments demonstrate that an offender has substantially benefited from rehabilitation and is suitable for supervised reintegration into society, the Court is entitled to consider whether the remaining custodial term continues to serve those objectives.
9. Having considered the period already served by the Applicant, the favourable probation report, his demonstrated remorse and rehabilitation and the Probation Officer's assessment that he is suitable for a non-custodial sentence, I am satisfied that the interests of justice will be adequately served by converting the unexpired portion of the custodial sentence into a supervised probation order.
Accordingly, I find merit in the application.
Orders
a. The application for review of sentence is hereby allowed.
b. The unexpired portion of the Applicant's sentence of imprisonment is hereby substituted with a probation order for the remainder of the sentence.
c. The Applicant shall be released forthwith unless he is otherwise lawfully held.
d. Upon his release, the Applicant shall remain under the supervision of the Probation and Aftercare Service for the remainder of his sentence and shall comply with all lawful directions issued by the supervising Probation Officer.
e. The supervising Probation Officer shall monitor the Applicant's compliance with the probation order and shall file a report before this Court upon the expiry of the probation period or earlier in the event of any breach of the probation order.
It is so ordered.
2. He faced secont count malicious damage to property contrary to section 339(1) as read with Section 339(2) of the Penal Code the particulars were that on the 20th day of April 2023 at Leldet Village in Kipkelion Sub-County within Kericho County willfully and unlawfully destroyed main house door shutters, kitchen door shutter and flower pot valued at Kshs. 10,000 the property of John Kibet Tonui.
3. He face a third charge of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95(1)(b) of the penal code particulars were that on 20th April 2023 at Leldet Village in Kipkelion Sub-County within Kericho County created disturbance in aa manner likely to cause a breach of the peace by chasing Joseph Kibet Tonui out of his home while armed with a panga.
4. Upon conclusion of the trial, the Applicant was found guilty on Count I and Count II, on 31st August 2023, and was sentenced to serve five (5) years' imprisonment for Count 1 and one (1) year in Count II. The sentences were to run concurrently. He has remained in custody since the date of his sentence.
5. The Court has considered the Applicant's request for review of sentence together with the Sentence Review Report prepared by the Probation and Aftercare Service.
6. The report indicates that while serving his sentence, the Applicant has demonstrated rehabilitation progress and has family support. He indicated medium risk levels of recidivism however with close supervision under guidance and counselling there are high probability he will embrace good morals and social control in his associations with the community.
7. He has a supportive family system willing to receive and assist in his settling and integration. He has shown positive strides of rehabilitation and readiness to embrace good behavior in the community. He has gained trade skills which can get him purposefully engaged in the community and is suitable to benefit from a sentence review.
8. I am alive to the fact that the Applicant was convicted of the serious offences as stated above. The custodial sentence imposed by the trial court was lawful and appropriate in the circumstances of the case. However, sentencing serves multiple objectives, including punishment, deterrence, rehabilitation, protection of the public and restorative justice. Where subsequent developments demonstrate that an offender has substantially benefited from rehabilitation and is suitable for supervised reintegration into society, the Court is entitled to consider whether the remaining custodial term continues to serve those objectives.
9. Having considered the period already served by the Applicant, the favourable probation report, his demonstrated remorse and rehabilitation and the Probation Officer's assessment that he is suitable for a non-custodial sentence, I am satisfied that the interests of justice will be adequately served by converting the unexpired portion of the custodial sentence into a supervised probation order.
Accordingly, I find merit in the application.
Orders
a. The application for review of sentence is hereby allowed.
b. The unexpired portion of the Applicant's sentence of imprisonment is hereby substituted with a probation order for the remainder of the sentence.
c. The Applicant shall be released forthwith unless he is otherwise lawfully held.
d. Upon his release, the Applicant shall remain under the supervision of the Probation and Aftercare Service for the remainder of his sentence and shall comply with all lawful directions issued by the supervising Probation Officer.
e. The supervising Probation Officer shall monitor the Applicant's compliance with the probation order and shall file a report before this Court upon the expiry of the probation period or earlier in the event of any breach of the probation order.
It is so ordered.