[2021] KEHC 8949 (KLR)
The High Court found that the trial court erred in law by failing to consider the appellant's status as a first offender and by not taking into account the one year the appellant spent in pre-trial custody, as mandated by section 333(2) of the Criminal Procedure Code. These omissions entitled the appellate court to...
Source-derived case information.
- Citation
- [2021] KEHC 8949 (KLR)
- Parties
- Appellant: Eugine Odour Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E015 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Principles, First Offender Status, Pre Trial Custody Credit, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eugine Odour Omondi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in failing to consider the appellant's status as a first offender during sentencing.
- 2 Whether the trial court failed to account for the period the appellant spent in pre-trial custody as required by law.
- 3 Whether the sentence imposed was excessive in the circumstances.
Ratio Decidendi
The High Court found that the trial court erred in law by failing to consider the appellant's status as a first offender and by not taking into account the one year the appellant spent in pre-trial custody, as mandated by section 333(2) of the Criminal Procedure Code. These omissions entitled the appellate court to interfere with the sentencing discretion of the trial court. Upon re-evaluation, the High Court determined that the ends of justice had been met by the period already served by the appellant, and therefore allowed the appeal and ordered his release unless held on other lawful warrants.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The appellant is ordered released unless held on other lawful warrants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CRIMINAL APPEAL NO E015 OF 2020
EUGINE ODOUR OMONDI..................................................APPELLANT
VERSUS
REPUBLIC...........................................................................RESPONDENT
(Being an appeal from the original sentence of Hon P.C.Biwott, SPM, dated 30th November 2020 in Criminal Case No 823 of 2019 in the Senior Principal Magistrate’s Court at Kabarnet, Republic v Eugine Odour Omondi)
JUDGMENT
1. In his petition to this court, the appellant has appealed against his sentence of twelve months’ imprisonment in respect of the offence of breaking into a building and committing a felony contrary to section 306 (a)4 of the Penal Code (Cap 63) Laws of Kenya
2. The appellant has raised the following grounds in his petition to this court. In ground 1 and 2, the appellant has stated that he committed the offence due to the bad company of the people he was with; whom he has now promised to shun.
3. In ground 3 the appellant has stated that he has siblings who entirely depend upon him as he is their sole bread winner.
4. In ground 4 the appellant has stated that the one year he was in pre-trial remand should be taken into account in accordance with section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
5. Furthermore, the appellant has filed written submissions in support of his appeal. He has replicated the same matters that he has raised in his grounds of appeal in his submissions; which I find unnecessary to consider.
6. In sentencing the appellant, the trial court took into account a probation officer’s report that declined to recommend that he be released on probation.
7. The probation officer found that he was a first offender. The trial court did not take into account that he was a first offender. I find this to be an error of law; that entitles me to interfere with the sentence.
8. I have re-evaluated the sentence imposed in the light of the applicable law as a first appeal court. As a result, I find that I am entitled to interfere with the sentencing discretion of the trial court; for it erred in law in failing to take into account that the appellant was a first offender and that he was in pre-trial custody for one year. The trial court was bound to take into account that period as required of it by section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
9. After considering the foregoing matters, I find that the ends of justice have been met in view of the sentence the appellant has served.
10. In the premises, the appellant has succeeded in his appeal with the result that he is hereby ordered released unless held on other lawful warrants.
Judgment dated, signed and delivered in open court at Kabarnet this 26th day of February 2021.
J M BWONWONG’A
JUDGE
In the presence of:
Mr Sitienei the court assistant.
The appellant present in person.
Mr Abwajo for the respondent.