[2018] KEHC 9912 (KLR)
The High Court found that the trial magistrate properly convicted and sentenced the Applicant for child stealing under Section 174(1)(a) of the Penal Code, with the three-year sentence being within the statutory maximum of seven years. The Applicant's mitigation, including her desire to care for her children, did...
Source-derived case information.
- Citation
- [2018] KEHC 9912 (KLR)
- Parties
- Applicant: Evaline Lusichi Khaluma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 804 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Legal Topics
- Child Stealing, Making Document Without Authority, Sentencing Revision, Penal Code Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evaline Lusichi Khaluma
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the Applicant for child stealing was proper and lawful.
- 2 Whether the trial magistrate erred by not passing sentence on Count II (making a document without authority).
Ratio Decidendi
The High Court found that the trial magistrate properly convicted and sentenced the Applicant for child stealing under Section 174(1)(a) of the Penal Code, with the three-year sentence being within the statutory maximum of seven years. The Applicant's mitigation, including her desire to care for her children, did not outweigh the seriousness of depriving another woman of her child. The court further held that the trial magistrate erred by failing to pass sentence on Count II (making a document without authority) despite a finding of guilt. The proper course was to remit the matter to the trial magistrate to impose sentence on Count II and determine whether the sentences should run...
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed with no order as to costs.
- The Applicant shall be escorted to Makadara Law Courts before the trial magistrate, Hon. A. Kithinji, SPM, for sentencing on Count II.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION. NO. 804 OF 2018
EVALINE LUSICHI KHALUMA................................APPLICANT
VERSUS
REPUBLIC................................................................RESPONDENT
RULING
1. The Applicant by an application filed in court on 3/9/2018 seeks revision of the sentence. She was sentenced on 11/9/2017 to serve a three year jail term. She was charged with two offences. In count I, she was charged with child stealing contrary to Section 174(1)(a) of the Penal Code. In Count II, she was charged with making a document without authority contrary to Section 357 of the Penal Code. The document in question in the latter charge was a birth notification certificate purporting it to be a certificate issued by Huruma Nursing Home.
2. From the body of the judgment, it is clear that the learned trial magistrate found that both charges had been proved beyond a reasonable doubt.
3. In an interesting twist, he only convicted the Applicant in respect of count I, for which she was sentenced. The duty of this court in an application of this nature is to call for the original record of trial of the subordinate court so that the court can satisfy itself as the correctness, propriety, regularity or legality of the order or sentence passed.
4. In the present case, under Section 354 of the Criminal Procedure Code, the court has powers to impose the correct sentence. In the present case, the recourse lies with remitting the file back to the trial magistrate so that he can pass the sentence in respect of count II.
5. In respect of Count I, Section 174(1)(a) of the Penal Code provides for a penalty of up to seven years imprisonment . In the view of this court, the Applicant’s action, by depriving another woman of her right to own and bring up her child, she can only feel the weight of her irresponsible action if she is kept away from her children for some time. That way, she will feel the pain of not being close to her children. Her mitigation that she deserves a release from jail so that she can go to take care of her children cannot bail her out.
6. The totality of my observation is that the application fails. I dismiss it with no orders of costs. I further order that the Applicant be escorted to Makadara Law Courts before the trial magistrate, Hon. A. Kithinji, SPM so that he can pass the sentence in respect of Count II. He shall additionally order how the sentence in that count shall run with the sentence in Count I. In his absence, the Applicant shall be presented before the Chief Magistrate of the court. Production order shall issue for the Applicant to appear before Makadara Law Courts on 2/12/2018 for this purpose. The original trial court record shall forthwith be remitted back for that purpose.
DATED and DELIVERED this 22nd day of November, 2018
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Applicant present in person
2. M/s Atina for the Respondent.