[2019] KEHC 611 (KLR)
The court found that the sentence imposed by the trial court was legal and not excessive, considering the applicant's conduct, including absconding from trial. The trial court acted within its powers under the Penal Code and Criminal Procedure Code. There was no procedural or substantive error in the sentencing...
Source-derived case information.
- Citation
- [2019] KEHC 611 (KLR)
- Parties
- Applicant: Fredrick Muthangua Maluki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 23 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Mitigation, First Offender, Probation Report, Custodial Sentence, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Muthangua Maluki
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by not considering mitigating factors before sentencing the applicant.
- 2 Whether the trial court should have called for a Probation Officer's Report as the applicant was a first offender.
- 3 Whether the trial magistrate should have exercised discretion to give an option of a fine instead of a custodial sentence.
Ratio Decidendi
The court found that the sentence imposed by the trial court was legal and not excessive, considering the applicant's conduct, including absconding from trial. The trial court acted within its powers under the Penal Code and Criminal Procedure Code. There was no procedural or substantive error in the sentencing process, and the absence of a Probation Officer's Report or an option for a fine did not render the sentence unlawful. The application for revision lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL REVISION CASE NO. 23 OF 2019
FREDRICK MUTHANGUA MALUKI...................APPLICANT
VERSUS
REPUBLIC............................................................RESPONDENT
R U L I N G
1. This file was placed before me following a letter written by D. M. Mutinda and Company Advocates.I have been asked to revise the sentence imposed by the trial Court on the grounds that the trial Court did not consider mitigating factors, it should have called for a Probation Officer’s Report as the Applicant was a first offender and the trial Magistrate should have exercised discretion and given an option of fine and that the custodial sentence was excessive.
2. It is important to note at the outset that this is the 2nd time this file is being placed before me for revision. At the outset the trial Court presided over by Hon. Mungutiplaced the matter before me so that I could satisfy myself of the propriety of the order sentencing the offender to serve a term in jail when the parties had purportedly agreed after he failed to turn up for trial. I rendered myself in my ruling dated the 22ndday of February, 2019and directed the offender to be committed to prison to serve the term commencing on the 22ndday of February, 2019.
3. My duty is therefore to satisfy myself of the legality of the sentence passed by the trial Court. Section 251of the Penal Codeprovides thus:
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”
4. The offender herein was charged with a misdemeanour, therefore, when he absconded the trial Court proceeded to determine the matter pursuant to Section 206of the Criminal Procedure Codeas pointed out in my earlier Ruling. Therefore, the Court did not fall into error.
5. Having taken into consideration the conduct of the offender, the sentence meted out which was legal was not excessive.
6. In the premises, the Application lacks merit. Accordingly, it is dismissed.
7. It is so ordered.
Dated, Signed and Deliveredat Kitui this 19thday of November,2019.
L. N. MUTENDE
JUDGE