[2024] KEHC 3146 (KLR)
The court found that while the sentence imposed by the trial court was lawful and within its discretion, it was harsh and excessive in the circumstances. The applicant had demonstrated remorse, undergone rehabilitation, and was the sole breadwinner for his family. The court exercised its revisionary jurisdiction to...
Source-derived case information.
- Citation
- [2024] KEHC 3146 (KLR)
- Parties
- Applicant: Josphat Nyabonga Elkana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 42 of 2024
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- Sentence of 3 years imprisonment substituted with a community service order of two years at the Chief's Office.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Review, Preparation to Commit Felony, Mitigation, Rehabilitation, Penal Code Section 308, Community Service Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Nyabonga Elkana
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the sentence imposed on the applicant was harsh and excessive.
- 2 Whether the applicant is entitled to a non-custodial sentence or a reduction of sentence based on rehabilitation and mitigation.
Ratio Decidendi
The court found that while the sentence imposed by the trial court was lawful and within its discretion, it was harsh and excessive in the circumstances. The applicant had demonstrated remorse, undergone rehabilitation, and was the sole breadwinner for his family. The court exercised its revisionary jurisdiction to substitute the custodial sentence with a non-custodial community service order, finding this to be a more appropriate and proportionate response to the offence and the applicant's personal circumstances.
Court Disposition
Sentence of 3 years imprisonment substituted with a community service order of two years at the Chief's Office.
Orders
- The sentence of 3 years imprisonment is set aside.
- The applicant shall serve a community service order of two years at the Chief's Office.
Full Case Text
Judgment text and source record
19 paragraphs
Elkana v Republic (Criminal Revision 42 of 2024) [2024] KEHC 3146 (KLR) (19 March 2024) (Ruling)
Neutral citation: [2024] KEHC 3146 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 42 of 2024
DR Kavedza, J
March 19, 2024
Between
Josphat Nyabonga Elkana
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and after a full trial convicted for the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code Cap, 63 Laws of Kenya. He was sentenced to serve 3 years imprisonment. He has now filed an application seeking sentence review.
2. The application is premised on the grounds that he has undergone various rehabilitative programmes and has since reformed. In addition, he is remorseful. He is the sole breadwinner in his family of one wife and two children. He urged the court to grant a non-custodial sentence or in the alternative consider the time served as appropriate
3. I have considered the application, the submissions by the applicant and the applicable law. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed. In that regard, I find that the sentence meted out was lawful and in learned trial magistrate discretion. Although the sentence imposed by the trial court was lawful, I find that the same was harsh and excessive.
4. Consequently, I hereby substitute the sentence of 3 years imprisonment meted by the trial court with a community serve order of two years at the Chief’s Office.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2024____________D. KAVEDZAJUDGE