1. This application of Slyvester Mitanga Mutilu herein referred to as the applicant states as follow;
2. The applicant is an adult currently serving an 8 years sentence in Shimo La Tewa maximum security prison for the office of defilement. 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
3. 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.
He relied on the following legal provision
4. Section 364(1) of the Criminal Procedure Code; 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.
5. He also cites 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 defilement country to section 5 (1) as read with 5 (2) of the Sexual Offences Act vide S.O case No. E53/2019 at Mombasa (Hon R Mwangi SRM)
b. Upon that conviction he was sentenced to 8 years impairment, a sentence that did not take into account his pretrial custody period.
c. In the High court his appeal was dismissed on conviction and the sentence was ordered to be computed from 18.6.2019, vide HCCR App No E092/2021 at Mombasa (Hon A Ongi’jo J)
d. The sentence of 8 years translates to five (5) years and four (4) months pursuant to the prison Act.
e. From the said date of 18.6.2019 the sentence ought to take me up to 18.11.2024, and therefore he is remaining with about 11 months to serve from now.
f. It is the said remaining period of 11 months that he seeks to be allowed to serve out of custody, on probation placeman under Section 4(2) of the Probation of Offenders Act.
g. 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.
7 While I am appreciating this decision of the High court to allow his sentence to be computed from the date of arrest, he approached this Hon court seeking to have a commutation of the remaining part of his to non custodial, to be served on probation, considering the mitigating circumstances .
8 Mitigating factors
(a) He left behind a wife and a six children, all of whom are now living in destitution in his absence.
(b) He is a first offender in this particular matter and is therefore humbly urged this honorable court to observe that factor as one that is universally acceptable in sentencing of criminal offenders.
(c )That he is 41 years of age and of good conduct and the prison administration has issued him with a favorable progressive report over his conduct and character in the interactions with the officers and fellow inmates.
(d) He regrets the offence very much and promise never to commit any other senseless act in future, having learnt his lesson the hard way.
(e) That He hasfully reformed and rehabilitated, and therefor prepared for re-integration back to the society.
9. Reliefs sought
It is on the basis of the foregoing that he is begging this Hon court to consider commuting the remaining period of his sentence to non-custodial, to be served out of custodial, to be served out of custody, on probation placement.
Relief sought
(i) He prays that this court considers commuting the remaining part of the sentence to non-custodial, to be served on probation placement.
(ii) Any other order that this Hon court deems fit to make.
10 A sentence review report was prepared it shows that the family members and area the community elders, community members were interviewed and support his re-integration beck in the Kitui community where the he hails from and where his family still lives up to date. That resettlement would never be a challenge since the family and community looks forward to receive him and ensure he gets back to the basic roles and responsibilities as family man, father, and a reformed community member. They pledged to look forward towards his compliance with interventions and rehabilitation strategies and orders that may be set by the court on his pleas for sentence review. The village elder Mishomoroni informed that he knows the family well. He highlights the suffering the family is going through since the conviction and imprisonment.
11 Conclusion and observation
The report states that 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
13.The court however notes that this was an offence which has a Victim the said victim was not consulted in the preparation of the report. Further it is noted that the appellant had appealed against both the conviction and the sentence and my sister Judge Ong’ijo even reduced the sentence. It would not be proper to again further review the resentence especially from a court of equal jurisdiction.
14 Accordingly, the court finds that the application lacks merit. It is hereby dismissed. The offender to complete his sentence. It is so ordered.
Dated and singed at Mombasa this 11th day July of 2024
W. MICHENI
JUDGE
PRESENT
Applicant in person
MS Maina for the respondent
Bebora court assistant