[2017] KEHC 2866 (KLR)
The court found that the appellant was not contesting his conviction but only the sentence. Considering the appellant's long period in custody since September 2014, his health conditions as evidenced by medical documentation, and confirmation that he had no other pending prison term, the court was convinced that the...
Source-derived case information.
- Citation
- [2017] KEHC 2866 (KLR)
- Parties
- Appellant: Edward O. Ng’ola; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 49 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Escape From Lawful Custody, Sentencing Principles, Plea Change, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edward O. Ng’ola
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for escape from lawful custody was excessive or harsh in the circumstances.
- 2 Whether the appellant's period already served in prison warranted a reduction or substitution of sentence.
Ratio Decidendi
The court found that the appellant was not contesting his conviction but only the sentence. Considering the appellant's long period in custody since September 2014, his health conditions as evidenced by medical documentation, and confirmation that he had no other pending prison term, the court was convinced that the appellant had learned his lesson. The sentence of one year imprisonment for escape from lawful custody was set aside and substituted with a sentence equivalent to the period already served. The court ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence of one year imprisonment is set aside and substituted with a sentence of the period already served.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KAKAMEGA
HCRA NO. 49 OF 2015
EDWARD O. NG’OLA:::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
V E R S U S
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Arising from the Judgment of Hon. D. Ogal criminal case No. 181 of 2015 at Chief Magistrate’s Court at Kakamega )
J U D G M E N T.
1. Edward O. Ng’olathe appellant was charged and convicted of the offence of escape from lawful custody contrary to section 123 as read with Section 36 of the penal Code. The particulars being that the appellant on 30th December, 2003 being at Kakamega G.K. Prison lawfully did escape from the said facility.
2. He had been held at the said prison over a criminal offence. Later on 30th September, 2014 he was arrested on charges of house breaking vide Butere Principal Magistrate’s criminal case No. 360 of 2014 where he was convicted and sentenced to 3 years imprisonment.
3. When he was arraigned in court on 26th January, 2015 he pleaded not guilty to the charge of escape from lawful custody. He however changed plea on 10th March, 2015 and the facts were read to him. He admitted them, was convicted and sentenced to one year imprisonment.
4. When this appeal came for hearing he presented the court with written submissions. He is basically seeking a reduction of the sentence. He explained that his long stay in Prison had taught him a lot. That he had also developed illnesses and wished to be released so that he could manage his affairs from home.
5. The State through Mr. Juma opposed the appeal saying the sentence was commensurate with the offence and it was not harsh.
6. I have considered the material before me. The appellant is not contesting his conviction. He has produced a document from Kakamega G.K. Prison dispensary confirming that he is suffering from hypertension, arthritis and peptic ulcer.
7. It has been confirmed to me by an officer from G.K. Main Prison Kakamega Mr. Mathews Omondi OkwesoP/No. 32259 that the appellant has no other pending prison term save for the current one he is serving for escape from lawful custody. The same term will be completed on 16th April , 2018 which is 8 months to go.
8. The appellant has been in prison since September, 2014 and I am convinced he has learnt his lesson.
9. I allow the appeal on sentence which sentence I set aside. I substitute it with a sentence of the period already served.
10. The appellant shall be released forthwith unless lawfully held under a separate warrant.
Orders accordingly.
Delivered, signed and dated this 18th day of August, 2017 at Kakamega.
H.I. ONG’UDI
JUDGE