[2022] KEHC 2931 (KLR)
The court found that the trial magistrate erred by failing to consider the applicant's mitigation, his status as a first offender, and the possibility of imposing a non-custodial sentence or an alternative of a fine. The court also held that the sentences for the two counts should have run concurrently rather than...
Source-derived case information.
- Citation
- [2022] KEHC 2931 (KLR)
- Parties
- Applicant: Fredrick Sembua Hamiri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E168 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; fine imposed with default custodial sentence
- Legal Topics
- Sentencing Principles, Revision of Sentence, Mitigation, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Sembua Hamiri
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial magistrate erred in failing to consider Section 216 of the Criminal Procedure Code and relevant sentencing guidelines.
- 2 Whether the sentence imposed was excessively harsh and punitive in the circumstances.
- 3 Whether the applicant, as a first offender and being remorseful, should have been considered for a non-custodial sentence or an alternative of a fine.
Ratio Decidendi
The court found that the trial magistrate erred by failing to consider the applicant's mitigation, his status as a first offender, and the possibility of imposing a non-custodial sentence or an alternative of a fine. The court also held that the sentences for the two counts should have run concurrently rather than consecutively. In light of the applicant's remorse, reconciliation with the complainant, and the concession by the respondent, the court revised the sentence to provide for a fine of Kshs. 50,000 in each count, with a default custodial sentence of 12 months per count. This revision aligns with the principles of proportionality, rehabilitation, and restorative justice as...
Court Disposition
sentence revised; fine imposed with default custodial sentence
Orders
- Applicant to pay Kshs. 50,000 fine in each count; in default, to serve 12 months jail term in each count.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VOI
CRIMINAL REVISION CASE NO. E168 OF 2021
FREDRICK SEMBUA HAMIRI.....................APPLICANT
VERSUS
REPUBLIC...................................................RESPONDENT
R U L I N G
1. The Applicant Fredrick Sembua Hamiri was connected in Taveta Magistrates Court CR. Case No. 265 of 2016 with the offence of assault causing bodily harm contrary to Section 251 of the penal code in 2 counts and he was sentenced to serve 2 years jail term in each count to run consecutively.
2. The Applicant was aggrieved by the sentence by the trial Magistrate and he wrote a letter through his advocates dated 9th November 2021 seeking that the lower court records be called for so that this court is satisfied to the correctness, legality and propriety of the sentencing of Applicant to custody without a fine.
3. The application was based on the grounds that:-
i. The learned Magistrate failed to address himself to Section 216 of the Criminal Procedure Code and paragraphs 7. 18 & 22. 12 of the Judiciary sentencing Policy Guidelines whilst making the said sentencing.
ii. That the Learned Magistrate failed to address himself to the exceptional circumstances surrounding the Applicants case whilst making the said sentencing.
iii. The learned Magistrate failed to judiciously weigh the mitigation of the Applicant which was well explained, extremely reasonable and satisfactory to the court as such formed a basis for non-custodial sentence.
iv. The learned Magistrate failed to consider that the Applicant is a 1st offender who is very remorseful.
v. The sentence by the learned Magistrate was excessively harsh and most punitive in the circumstances of the case.
4. The Applicant sought leave of the court to be heard under sections 365 of Criminal Procedure Code as read with Articles 165 of the constitution of Kenya 2010.
5. Applicant said he was remorseful and requested for forgiveness promising not to repeat not commit any other offence. He claimed to have already facilitated reconciliation with the complainant who is his immediate neighbour. He said that non-custodial sentence will facilitate the reconciliation as encouraged by Article 159 of the constitution. That the Applicant is ready to abide by all the terms given in a non-custodial sentence. That he begs for leniency so that he can take care of his child.
6. The Application for revision was canvassed by way of oral submissions the Applicant relying on the holdings in:-
i. Peter Mangeria vs Republic [1983] eKLR;
ii. Peter Mbugua Kaburu vs Republic [2016] eKLR;
iii. Barnaba Ondiek vs Republic [1976] eKLR.
7. Having given due consideration to application and the oral submissions, I do find that application has been conceded to the extent that sentence should have been ordered to run concurrently and/or that an alternative of fine should have been provided for.
8. The sentence is therefore revised in the following terms:-
i. Applicant fined to pay Kshs.50,000/= in each count in default to serve 12 months jail term in each count.
ii. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 13TH DAY OF JANUARY, 2022 BY EMAIL.
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:
Court assistant: Ogwel
Mr. Bwire Advocate for Applicant – No apperance
Ms. Kambaga hold brief for Simbi for state.
Hon. Lady Justice A. Ong’injo
Judge