[2017] KEHC 8918 (KLR)
The court found that the applicant had already served a sufficient portion of his sentence, and that further incarceration was not in the public interest since the applicant was willing and able to repatriate himself to Nigeria. The court noted that the applicant's continued detention would be at the expense of...
Source-derived case information.
- Citation
- [2017] KEHC 8918 (KLR)
- Parties
- Applicant: Emmanuel Inobomhe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 324 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Further Revision of Sentence
- Outcome
- application allowed; custodial sentence set aside and substituted with order of sufficient sentence, conditional on repatriation
- Legal Topics
- Sentencing Revision, Immigration Offences, Plea of Guilty, Mitigation, Prohibited Immigrant, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Inobomhe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Further Revision of Sentence
Legal Issues
- 1 Whether the applicant's custodial sentence of 18 months should be further revised in light of new mitigating factors.
- 2 Whether continued incarceration of the applicant serves the public interest given his willingness to repatriate himself.
Ratio Decidendi
The court found that the applicant had already served a sufficient portion of his sentence, and that further incarceration was not in the public interest since the applicant was willing and able to repatriate himself to Nigeria. The court noted that the applicant's continued detention would be at the expense of taxpayers, and that the trial magistrate had already ordered repatriation upon completion of sentence. The court therefore set aside the remaining custodial sentence and substituted it with an order that the applicant had served sufficient sentence, conditional upon the applicant presenting an air ticket for travel to Nigeria by a specified date.
Court Disposition
application allowed; custodial sentence set aside and substituted with order of sufficient sentence, conditional on repatriation
Orders
- The 18 months jail term is set aside and substituted with an order that the applicant has served sufficient sentence.
- The applicant shall present to the court an air ticket detailing his travel schedule to Nigeria on 13th March, 2017.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 324 of 2016
EMMANUEL INOBOMHE…………………………………..APPLICANT
VERSUS
REPUBLIC………………………………………………..…..RESPONDENT
RULING
The Applicant has once again returned to this court urging the court to further revise his custodial sentence of 18 months. The application is brought by way of Notice of Motion dated 20th December, 2016. It suffices to note that the Applicant had earlier moved the court seeking a revision of his initial sentence of 3 years vide a Notice of Motion dated 26th October, 2016. He was charged in the Chief Magistrate’s Court at Nairobi in Cr. Case No. 1650 of 2016 with two counts under the Kenya Citizenship and Immigration Act of 2011. In count I, he was charged with contravention of an order issued to a foreign national by the Cabinet Secretary contrary to Section 56(3). In Count II, he was charged with being unlawful present in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Act. He was convicted on his own plea of guilty and sentenced to 3 years imprisonment on each of the counts. The sentences were to run concurrently.
In a ruling of this court dated 21st November, 2016, the court revised the sentence downwards to 18 months imprisonment. Currently, he urges mitigating factors that he is ready to repatriate himself back to Nigeria. He has come to terms with the suffering of his immediate family members especially his young children who are of school-going age. So far, according to his counsel Mr. Swaka, he has served 7 months imprisonment.
The State through the leaned counsel Ms. Nyauncho opposed the application citing that the sentence had already been reduced reasonably. Besides, the court ought to note that the Applicant had disobeyed an Executive order to leave the country having been declared a prohibited immigrant. Learned counsel Mr. Swaka for the Applicant submitted that it was in the interest of the State and the taxpayers that the Applicant should not continue to remain in jail. The court was referred to its own ruling in the case of Abimbola Justus Oyeleye alias Justus Abimbola Ogola V Republic [2016] eKLR.
I have accordingly considered the application and the rival submissions The sentence having been passed on 21st October, 2016, the Applicant has only served four and a half months in prison. He was arrested on 28th September, 2016. Cumulatively therefore, he has been in custody for five months and not seven months as submitted by Mr. Swaka. I also note that the trial magistrate rightly upon passing sentence ordered that the Applicant be repatriated to his home country, Nigeria. Having this in mind and as I also noted in the cited case law, it is not in public interest that the Applicant should remain in jail at the tax payers’ expense whereas he can afford the air fare to Nigeria. Accordingly, the application is found meritorious.
In the end, I set aside the 18 months jail term and substitute it with an order that the Applicant has served sufficient sentence. He shall present to this court an air ticket detailing his travel schedule to Nigeria on 13th March, 2017 failing which the order of this court revising the sentence shall be recalled. The case will accordingly be mentioned on 13th March, 2017.
DATED and DELIVERED this 8th day of March, 2017
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Otieno h/b for Swaka for the Applicant
2. M/s Nyauncho for the Respondent.