[2020] KEHC 4337 (KLR)
The court found that while the sentence imposed by the trial court was lawful, exceptional circumstances arising from the COVID-19 pandemic and the need to decongest prisons justified revising the custodial sentence. The court also considered the complainant's forgiveness and the convict's family responsibilities....
Source-derived case information.
- Citation
- [2020] KEHC 4337 (KLR)
- Parties
- Applicant: Elijah Githaiga Mugo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 122 of 2020
- Procedural Posture
- Criminal Revision / Order in Revision
- Outcome
- Sentence revised; custodial sentence set aside and substituted with a fine, or imprisonment in default.
- Legal Topics
- Sentencing Revision, Breach of Peace, Public Health Considerations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Githaiga Mugo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order in Revision
Legal Issues
- 1 Whether the sentence imposed by the trial court should be revised in light of the convict's circumstances and the COVID-19 pandemic.
- 2 Whether the plea and forgiveness by the complainant (the convict's mother) should affect the sentence.
Ratio Decidendi
The court found that while the sentence imposed by the trial court was lawful, exceptional circumstances arising from the COVID-19 pandemic and the need to decongest prisons justified revising the custodial sentence. The court also considered the complainant's forgiveness and the convict's family responsibilities. Consequently, the court set aside the five-month imprisonment and substituted it with a fine of Kshs. 5,000, or in default, three months imprisonment, effective from the original sentencing date. The revision was limited strictly to these grounds and did not affect the conviction itself.
Court Disposition
Sentence revised; custodial sentence set aside and substituted with a fine, or imprisonment in default.
Orders
- The sentence of five months imprisonment is set aside and substituted with a fine of Kshs. 5,000, and in default of payment, three months imprisonment with effect from 06/07/2020.
- To that limited extent only is the sentence interfered with.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.122 OF 2020
(From Original Conviction and Sentence in Nanyuki Criminal Case No.770 of 2020)
ELIJAH GITHAIGA MUGO...................................................................APPLICANT
VERSUS
REPUBLIC............................................................................................RESPONDENT
14/07/2020
Coram: Before Waweru, J
(In chambers)
ORDER IN REVISION
1. Upon application by the convict, ELIJAH GITHAIGA MUGO, I have called for and examined the record of the trial court in respect to the sentence.
2. The convict pleaded guilty to the offence of creating a disturbance in a manner likely to cause a breach of the peace C/S 95(1)(b)of the Penal code and was duly convicted. The particulars of the offence were the he had threatened to harm his own mother, JOYCE NYAWIRA MUGO, with stones and a rungu.
3. On 06/07/2020 the convict was sentenced to five(5) months imprisonment.
4. I note from the trial court record that the convict’s mother (the complainant) wrote to the court on 08/07/2020 saying that she had forgiven her son and that she wished to withdraw the complaint. It was too late of course as the convict had already pleaded guilty, been convicted and sentenced. The mother stated in her letter that she had decided to forgive him because “…..he has a family who need his support particularly (during) this Covid -19 pandemic.”
5. In his own letter seeking revision the convict has stated that he has a wife and three(3) children, all who depend on him. He pleads for a non-custodial sentence.
6. I have considered the convict’s and his mother’s plea. First of all I must point out that the sentence meted out by the trial court is lawful.
7. Purely because of the public health need to decongest our prisons during this Coronavirus (COVID-19) pandemic, I will set aside the sentence of five (5) months imprisonment meted out by the trial court and substitute therefore a fine of Kshs.5,000/00, and in default of payment to serve three (3) months imprisonment with effect from 06/07/2020. It is so ordered.
8. To that limited extent only is the sentence interfered with.
GIVEN under my hand and seal of this Honourable Court this 14th day of July 2020
H.P.G. WAWERU
JUDGE.
ISSUED at NANYUKI this 14th day of July 2020.
DEPUTY REGISTRAR
NANYUKI HIGH COURT