1. This application of PAUL KAMAU MACHARIA herein referred to as the applicant states as follow;
2. The applicant is an adult currently serving a 7 years sentence in Shimo La Tewa maximum security prison for the office of stealing of motor vehicle parts contrary to section 279(G) of the penal code. He pleaded guilty to the charge and was sentenced accordingly.
3. The respondent is the DPP an office established pursuant to Article 157 of the Constitution with mandate of instituting and undertaking criminal proceedings against any person before any court (other than court martial) in respect of any offence recognized by laws of Kenya.
Legal Foundation of the Application
4. Section 364 (1) of the Criminal Procedure Code; in the case of a proceedings in a subordinate court, the record of which has been called for, or which has been reported for orders, or which otherwise comes to its knowledge, the High court may; in case of any other order other than an order of acquittal, alter or reverse the order.
5. Section 364(1) of the Criminal Procedure Code provides that; The High court may pass any sentence authorized by law. Section 4 (2) of the Probation of Offenders Act Cap 64 (2012); where any person is convicted of and offence by the High court and the court is of the opinion that, having regard to the youth character, antecedents, home surroundings, healthy or mental condition of the offender, or to the nature of the offence , or to any extenuation circumstance in which, the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
6. Section 24 (i) of the Penal Code provides; the following punishment may be inflicted by a court.
b. Imprisonment or, where the court so determines under the community serve orders Act 1998, community service under a community service order.
(i) Any other punishment provided by this code or by any other Act
He also cited the Kenya sentencing policy guidelines; page; page 15, paragraphs 4.1 provides as follows; “sentences are imposed to meet the following objectives
(a) Retribution; to punish the offenders of his /her criminal conduct in a just manner.
b Deterrence; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c. Rehabilitation; to enable the offender reform from his criminal disposition and became a law abiding person.
e. Restorative justice; to address the needs arising from criminal conduct such as loss and damage. Criminal conduct ordinarily occasion victim’ communities’ and offenders needs and justice demands that these are met. Further to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.
e. Community protection; to protect the community by in capacitating the offender.
f. Denunciation; to communicate the community’s condemnation of the criminal conduct”
6 Back ground facts
a. He was charged and convicted for the offence of stealing motor vehicle parts
b. Upon that conviction on his own plea of guilty, he was sentenced to 7 years impairment.
He states he was a first offender, he is remorseful and has learnt his lesson seeks to be allowed to serve out of custody, on probation placeman under Section 4(2) of the Probation of Offenders Act.
c. He undertake to commit himself to comply with any terms and conditions and for the entire remaining period that this court may impose as security upon the success of this particular request.
(i) He prays that this court considers commuting the remaining part of the sentence to non-custodial, to be served on probation placement.
11 Conclusion and observation
The applicant as undergone makeable rehabilitation and reformation as confirmed by the holding facility. He has shown a positive mark on reforms and has a changed attitude towards crime, law and order and punishment. As observed, his conviction and imprisonment has made a significant change in his personality and behaviour change. The family has registered socio-economic and psychological support towards his re-integration and re-settlement and ensure he meets all the basic need, psychological and emotional well-being and are prepared to ensure he gets a conducive environment to ensure a positive progress in post imprisonment as well as his future life. At the moment, he is no longer a threat to the community or members of the public.
He pleaded gulty to the offence and that ought to have been taken into account
The court however notes that recommendation
14 Accordingly, the court finds that the application has merit.
. The sentence is reviewed to 3 years imprisonment and thereafter a probation sentence of 3 years
Dated and signed and delivered virtually this___30TH_____ day of July 2024
W. MICHENI
JUDGE
PRESENT
APPELLANT
MS MAINA FOR THE STATE
BEBORA COURT ASSITANT 1