[2018] KEHC 1386 (KLR)
The High Court found no evidence that the applicant assaulted the complainant a second time after being released on bond, contrary to the respondent's submission. The trial court had properly considered the applicant's status as a repeat offender and exercised its discretion in sentencing. There was no demonstration...
Source-derived case information.
- Citation
- [2018] KEHC 1386 (KLR)
- Parties
- Applicant: Geofrey Odhiambo Felix; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 108 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Sentencing Principles, Revision Jurisdiction, Repeat Offender, Non Custodial Sentence, Penal Code Section 251
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geofrey Odhiambo Felix
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred in sentencing the applicant to imprisonment without the option of a fine.
- 2 Whether there was any illegality, incorrectness, or impropriety in the proceedings or sentence to warrant revision by the High Court.
Ratio Decidendi
The High Court found no evidence that the applicant assaulted the complainant a second time after being released on bond, contrary to the respondent's submission. The trial court had properly considered the applicant's status as a repeat offender and exercised its discretion in sentencing. There was no demonstration of any irregularity, illegality, incorrectness, or impropriety in the proceedings, findings, or sentence of the subordinate court. Therefore, there was no basis for the High Court to interfere with the sentence imposed by the trial court, and the application for revision was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for revision is disallowed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL REVISION NO. 108 OF 2018
(From original sentence in Criminal Case No. 38 of 2016 in Senior Resident Magistrate's Court at Winam by Hon. J.Mitey (RM) on 23. 10. 18)
GEOFREY ODHIAMBO FELIX...................................................APPLICANT
V E R S U S
REPUBLIC...................................................................................RESPONDENT
RULING
1. On 23rd October, 2018, the applicant was sentenced to serve an imprisonment term of 3 years for the offence attempted assault contrary to section 251 of the Penal Code.
Applicant’s case
2. This revision is brought by way of an application filed on 31st October, 2018. The application is supported by the applicant’s affidavit filed on even date in which he urges the court to order a non-custodial sentence preferably an option of a fine.
Respondent’s case
3. Mr. Muia leaned counsel for the state opposed the application. He submitted that the offence the applicant was convicted for attracts a mandatory sentence (must have meant maximum sentence) of 5 years. He submitted that after plea was taken and applicant was released on bond, he assaulted the complainant again. He also submitted that the applicant was not a first offender and had been sentenced for a similar offence in Winam Criminal Case Number 719 of 2016where he was find Kshs. 20,000/- in default 6 months imprisonment.
4. The powers of the High court in revision cases are contained in Section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows:-
“362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.
5. I have perused the record of the Lower court and I did not find any evidence that after the applicant was released on bond, he assaulted the complainant a second time.
6. In sentencing the trial court evidently considered that the applicant was not a first offender since he had previously been convicted and sentenced for a similar offence. From the material placed before the court, it has not been demonstrated that the trial court’s discretion was not properly exercised when it sentenced the applicant to an imprisonment term without the option of a fine. It has similarly not been demonstrated that there exists any irregularity, illegality, incorrectness or impropriety of the proceedings, finding, sentence or order passed by the subordinate court to warrant a revision.
7. Consequently, the application for revision is considered and found to have no merit and it is disallowed.
DATED AND DELIVERED THIS 6th DAY OF December 2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant - Present
For the State - Mr. Barasa