[2021] KEHC 5024 (KLR)
The High Court found that the trial magistrate exercised proper discretion in sentencing the applicant to 40 years imprisonment, taking into account mitigation and the relevant legal principles, including the Supreme Court's guidance in Muruatetu. The sentence was affirmed by the Court of Appeal and found to be...
Source-derived case information.
- Citation
- [2021] KEHC 5024 (KLR)
- Parties
- Applicant: Alfred Njuruka Makoko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E013 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed with modification
- Legal Topics
- Sentence Revision, Mitigation, Custodial Sentence, First Offender, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Njuruka Makoko
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant is entitled to a revision of sentence based on time spent in custody and personal circumstances.
- 2 Whether the trial court properly exercised its discretion in sentencing the applicant to 40 years imprisonment instead of the maximum death sentence.
- 3 Whether the sentence should take effect from the date of arraignment.
Ratio Decidendi
The High Court found that the trial magistrate exercised proper discretion in sentencing the applicant to 40 years imprisonment, taking into account mitigation and the relevant legal principles, including the Supreme Court's guidance in Muruatetu. The sentence was affirmed by the Court of Appeal and found to be sound. The court held that it could not interfere with the sentence as there was no error or injustice. However, the court ordered that the sentence should take effect from the date of arraignment, subject to confirmation that the applicant was not released on bond at that time.
Court Disposition
application dismissed with modification
Orders
- The application to revise the sentence is dismissed.
- The sentence shall take effect from the date the applicant was arraigned in court, subject to confirmation that he was not released on bond.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VOI
CRIMINAL MISCELLENOUS CASE NO. E013 OF 2020
ALFRED NJURUKA MAKOKO...............PETITIONER
VERSUS
REPUBLIC.................................................RESPONDENT
R U L I N G
1. Application herein is brought under Article 50(2) (p) & (q) which provides:-
“Every accused person has the right to a fair trial which includes the right.
(p) to the benefit of the least severe of the prescribed punishment for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to or apply for review by a higher court as prescribed by law”.
2. Applicant seeks for revision of his sentence for reasons that he has spent considerable period of time in prison and that he had duly reformed having undergone counseling on anger management, alternative to violence projects, peer education among other courses in the correctional facility.
3. He averred that the period he spent in custody be factored in his sentence and that he should be considered as a 1st offender. He said he was elderly and has some health issues which are bothering him. He said he regretted the occurrence of the incident and requested to be forgiven and given a second chance in life.
4. The applicant was sentenced to serve 40 years imprisonment after the trial court considered his mitigation and as the Court of Appeal said in CR. A. Nos. 30, 31, 32 & 33 of 2015 – Mohammed Dadi Kokane & 3 Others vs Republic [2019] eKLRat page 7 paragraph 36
“We note that the trial court issued the same after taking into considering the appellants’ mitigation and exercising its discretion in accordance with the holding of the Supreme Court in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR and in our view the sentence is sound”
5. The trial Magistrate exercised her discretion in passing the sentence and instead of making an order for death sentence which is the maximum she committed the applicant to serve 40 years in jail. This court cannot interfere with that discretion which passed the test in Court of Appeal and in Voi High Court CR. Misc. Application No. 2 of 2019.
6. The application to revise sentence therefore fails save that the sentence may take effect from date when applicant was arraigned in court subject to confirmation of date when arraigned and that when he was arraigned in court he was not released on bond.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE BY MS TEAMS, THIS 15TH DAY OF JULY 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:
Ogwel – Court Assistant
Respondent – Ms. Karanja hold brief for Mr. Chirchir
Petitioner – No appearance
Hon. Lady Justice A. Ong’injo J
15/7/20201