[2016] KEHC 7657 (KLR)
The court found that although the sentences imposed were legal, the applicant had already spent almost one and a half years in remand, was a first offender, and would be repatriated to Ethiopia. These factors constituted sufficient punishment. Therefore, the sentence was set aside and the applicant ordered to be...
Source-derived case information.
- Citation
- [2016] KEHC 7657 (KLR)
- Parties
- Applicant: Adamu Ayanto Babiso; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 71 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence set aside; applicant released and to be repatriated
- Legal Topics
- Sentencing Review, Illegal Presence, Forged Passport, Immigration Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adamu Ayanto Babiso
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was excessive in the circumstances.
- 2 Whether the period spent in remand should be considered in revising the sentence.
- 3 Whether the applicant, as a first offender and subject to repatriation, merited a reduction or setting aside of the sentence.
Ratio Decidendi
The court found that although the sentences imposed were legal, the applicant had already spent almost one and a half years in remand, was a first offender, and would be repatriated to Ethiopia. These factors constituted sufficient punishment. Therefore, the sentence was set aside and the applicant ordered to be released and repatriated.
Court Disposition
sentence set aside; applicant released and to be repatriated
Orders
- The sentence imposed on the applicant is set aside.
- The applicant is to be forthwith set free.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.71 OF 2016
ADAMU AYANTO BABISO……….……….………..APPLICANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
RULING
Pursuant to Section 362 of the Criminal Procedure Code, the lower Court file has been forwarded to this court with a view to the court satisfying itself as to the correctness, legality or propriety of the lower court record in the Chief Magistrate’s Court at Milimani Criminal Case No. 1623 of 2014. In that case, the Applicant herein was charged in count I, with being in possession and using a passport in which an endorsement had been forged contrary to Section 54(1)(c) of the Kenya Citizenship and Immigration Act of 2011. In count II, he was charged with being unlawfully present in Kenya contrary to Section 53(1)(j) of the Kenya Citizenship and Immigration Act of 2011.
When the Applicant was first presented in court on 17th November, 2014, he pleaded not guilty and a hearing date for the trial was set. On 29th August, 2015, he changed his mind and informed the court that he would plead guilty to the offences. He was accordingly convicted on his own plea of guilty. In count I, he was sentenced to a fine of Kshs. 500,000/= in default, serve one year in jail. In count II, he was sentenced to pay a fine of Kshs. 100,000/= in default serve two years in jail. The sentences were to run concurrently. They were passed on 31st July, 2015.
By an application filed in count on 17th February, 2015, the Applicant seeks a review of the sentence on ground that the same was excessive in the circumstances. He urged the court to take into account that he has been in remand since 17th November, 2014 the date of his arrest.
I have accordingly considered the application. The Applicant herein having been arrested on 17th November, 2014 has been in remand for almost one and a half years. Although the sentences were legal, I take into account that he was a first offender and in any event will have to be repatriated to his home country Ethiopia. It is then only fair that the sentence be revised in his favour. It is the view of this court that he has served sufficient punishment.
In the end, I set aside the sentence imposed and order that the Applicant be and is hereby forthwith set free. He shall however be repatriated to his home country Ethiopia.
DATED and DELIVERED this 26thday of April, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
The Applicant in person.
M/s Akuja for the Respondent.