The High Court in Eldoret has dismissed a bid by a man convicted of stealing a phone to have his prison term replaced with a non-custodial sentence, in a case where his mother told probation officers she did not want him freed early, stating he had not learned his lesson.
Collins Omondi was convicted in March 2025 after pleading guilty to stealing a Nokia mobile phone worth Sh33,000 from Sheila Jepkosgei on February 14, 2025, at Kimumu, Uasin Gishu County.
He was fined Sh60,000 or, in default, sentenced to one year in prison by the trial court.
Unable to raise the fine, he began serving the custodial sentence.
Subsequently, in his application for review, Omondi sought to have the prison term substituted with a non-custodial sentence such as probation or community service.
He relied on sections 357, 362, 364, and 382 of the Criminal Procedure Code and cited Article 50 of the Constitution, which guarantees the right to appeal and to benefit from the least severe punishment where applicable.
Omondi told the court he had taken responsibility for his actions and was determined to reform, saying that a non-custodial sentence would give him a chance to work and support himself.
He argued that he had maintained good conduct while in custody, carrying out assigned cleaning duties diligently, and believed he could reintegrate into the community without posing a risk.
The court, presided over by Justice Reuben Nyakundi, considered a social inquiry report dated July 30, 2025, prepared by the probation office.
The report gathered views from prison officials, the offender’s family, the complainant, and community members.
It revealed a troubled personal history, marked by school dropout, unfinished masonry training, strained family relations, and repeated brushes with community anger over alleged theft incidents.
According to the report, Omondi is the eldest of three siblings, raised by a single mother after his father died.
"His mother remarried; however, he never had a good relationship with his stepfather. His mother is a hairdresser, and despite the financial constraints, the family is able to meet their basic needs. It is evident from the inquiry that he comes from a well-knit family, and none of his siblings has criminal tendencies," part of the ruling stated.
The probation officer noted that before his arrest, Omondi often disappeared from home for days and engaged in “notorious habits” that earned him a reputation as a habitual thief in the area, narrowly escaping mob justice on several occasions.
The turning point in the report was his mother’s stance.
She told the probation officer she did not want her son released early, insisting he had not learned his lesson.
The mother said he needed more time in custody to reflect on his behaviour and change his ways.
"The inmate has shown utter remorse; however, his mother requests that he should not be released at this point, as he feels he has not learnt his lesson. The time she has visited him to try to talk to him to change his ways, she says she has always left disappointed, as he insults her," the probation report's recommendation stated in part.
While the prison administration confirmed Omondi had been given cleaning duties and expressed willingness to work upon release, the probation office recommended against a non-custodial sentence.
The recommendation cited the mother’s objections, Omondi’s poor reform prospects, and the risk of reoffending.
Justice Nyakundi, in his August 4, 2025 ruling, acknowledged that non-custodial sentences play an important role in Kenya’s criminal justice system.
He noted that the Judiciary’s 2023 Sentencing Policy Guidelines encourage courts to consider alternatives to imprisonment where appropriate, balancing objectives such as rehabilitation, deterrence, retribution, restorative justice, and community protection.
However, the judge stressed that such sentences are not suitable for all offenders.
He said courts must assess an offender’s readiness for reintegration and the safety of the community before replacing a custodial sentence.
“The court is being asked to review the custodial sentence and have it substituted with a non-custodial sentence,” Justice Nyakundi said.
“As I appreciate the record and the impugned decision on sentence, I bear in mind that this is one area of law which involves the weighing of many complex factors. The court should not intervene unless it is convinced that this would have resulted in the decision going the other way.”
The judge found that the trial court’s original sentence was lawful, proportionate, and consistent with the law.
He said he agreed with the probation officer’s findings that Omondi was not fit for early release under a non-custodial arrangement.
“In light of the probation officer’s findings, I concur that the applicant is not fit and eligible to be released from custody so as to serve a non-custodial sentence as part of the rehabilitation program,” the judge ruled.
“The application for review is therefore dismissed under section 382 of the Criminal Procedure Code.”
