[2017] KEHC 9734 (KLR)
The court found that the trial magistrate had already considered the period the applicant spent in custody prior to sentencing. However, given that the applicant was a first offender, the value of the stolen property was only Kshs. 1,000, and the applicant had cumulatively spent about four years in custody...
Source-derived case information.
- Citation
- [2017] KEHC 9734 (KLR)
- Parties
- Applicant: Collins Odhiambo Asuka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 77 of 2016
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence varied; applicant released
- Legal Topics
- Sentencing Principles, Credit for Time Served, Stealing From Person, First Offender Consideration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collins Odhiambo Asuka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered as part of the applicant's sentence.
- 2 Whether the sentence imposed was harsh and excessive given the circumstances of the offence and the applicant's status as a first offender.
Ratio Decidendi
The court found that the trial magistrate had already considered the period the applicant spent in custody prior to sentencing. However, given that the applicant was a first offender, the value of the stolen property was only Kshs. 1,000, and the applicant had cumulatively spent about four years in custody (including pre-sentence and post-sentence periods), the sentence of five years imprisonment was deemed harsh and excessive. The court held that the time already served constituted sufficient punishment commensurate with the offence. Accordingly, the remainder of the sentence was set aside and the applicant was ordered to be released unless otherwise lawfully held.
Court Disposition
sentence varied; applicant released
Orders
- The remainder of the sentence is set aside.
- The applicant is deemed to have served sufficient sentence.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 77 OF 2016
COLLINS ODHIAMBO ASUKA..…APPLICANT
VERSUS
REPUBLIC …….………………….RESPONDENT
RULING
In this application, the Applicant prays that the period he spent in custody be considered as constituting part of his sentence. He was convicted for the offence of stealing from a person and upon conviction was sentenced to serve five years imprisonment.
I have seen the original record of proceedings. It is clear that the learned trial magistrate took into account the period the Appellant was in custody before he was sentenced. However, the particulars of the charge sheet do show that he only stole cash Kshs. 1,000/=. He was also a first offender. Thus, it is my opinion that the sentence passed was harsh and excessive in the circumstances, taking into account that he was in custody for a period of one year seven months and 10 days prior to sentence. In addition, he has served sentence for a period of two years and about five months. Cumulatively, he has been in custody for about four years. This is sufficient punishment that is commensurate with the offence.
I accordingly set aside the remainder of the sentence. I substitute it with an order that the Applicant has served sufficient sentence. I order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi this 30th day of November, 2017.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Applicant present in person
2. M/s Sigei for the Respondent.