[2021] KEHC 6335 (KLR)
The court found that although the trial court had properly exercised its discretion in sentencing the Applicant, there were changed circumstances since incarceration. The Applicant had shown remorse, learned from his actions, and the complainant (his brother) had forgiven him and did not oppose a non-custodial...
Source-derived case information.
- Citation
- [2021] KEHC 6335 (KLR)
- Parties
- Applicant: Calistas Devis Wenwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 63 (E066) of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision of sentence allowed
- Judges
- LK Kimaru
- Legal Topics
- Malicious Damage to Property, Sentencing Revision, Plea of Guilty, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calistas Devis Wenwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the custodial sentence imposed on the Applicant for malicious damage to property should be revised in light of changed circumstances.
- 2 Whether the Applicant has demonstrated sufficient remorse and rehabilitation to warrant a revision of sentence.
Ratio Decidendi
The court found that although the trial court had properly exercised its discretion in sentencing the Applicant, there were changed circumstances since incarceration. The Applicant had shown remorse, learned from his actions, and the complainant (his brother) had forgiven him and did not oppose a non-custodial sentence. The court determined that the Applicant had been sufficiently punished and that further incarceration was unnecessary. Accordingly, the custodial sentence was commuted to the period already served, and the Applicant was ordered to be released unless otherwise lawfully held.
Court Disposition
application for revision of sentence allowed
Orders
- The default custodial sentence is commuted to the period served.
- The Applicant is ordered to be set at liberty forthwith and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
REVISION NO. 63 (E066) OF 2021
CALISTAS DEVIS WENWA........................................................APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
The Applicant , Calistas Devis Wenwa was convicted on his own plea of guilty for the offence of Malicious damage to property contrary to Section 339(1) of the Penal Code. According to the facts narrated by the prosecution, the Applicant did on 9th February 2021 at Bondeni village, Trans Nzoia County willfully and unlawfully destroy four iron sheets valued at Kshs 2,400/=, the property of Michael Wenwa. The Applicant was sentenced to pay a fine of Kshs 30,000/= or in default he was ordered to serve twelve (12) months imprisonment. He did not pay the fine. He is serving the default custodial sentence. Aggrieved by the sentence, the Applicant has applied to this court for the revision of the sentence.
The Applicant stated that he was annoyed when he committed the offence. He had learnt that anger does not pay. He asked the court to forgive him and give him his freedom. He promised not to commit another offence if released. The Prosecution was not opposed to the court exercising its appropriate revisionary discretion.
Prior to the hearing of the application, the court ordered for a probation report to be prepared. The same was filed in court. According to the report, the complainant in the case is the Applicant’s brother. The two had a boundary dispute. The boundary issue was resolved but it appeared that the Applicant was not satisfied with the outcome. On the day he committed the offence, he was drunk. The complainant attributed the Applicant’s travails to excessive consumption of alcohol. He had forgiven him and hoped that during the period of his incarceration he had learnt his lesson. He was not opposed to the Applicant serving the remainder of his sentence on probation.
Although the trial court properly exercised its discretion when it sentenced the Applicant, this court is of the view that there are changed circumstances since the Applicant’s incarceration. It is apparent that the Applicant has learnt the folly of his ways since his imprisonment. He has learnt that anger does not pay. On the part of the complainant, he is willing to forgive the Applicant and had no objection to the Applicant’s custodial sentence being accordingly revised.
In the premises therefore, this court formed the view that the Applicant has been sufficiently punished. The default custodial sentence that he is serving is commuted to the period served. He is ordered set at liberty forthwith and released from prison unless otherwise lawfully held. It is so ordered.
DATED AT KITALE THIS 10TH DAY OF JUNE 2021.
L. KIMARU
JUDGE