[2018] KEHC 8948 (KLR)
The High Court found that the trial magistrate exercised proper judicial discretion in sentencing the Applicant to a legal custodial sentence for the offence of stealing a motor vehicle. However, considering the Applicant's remorse, reformation, personal circumstances, and the State's lack of opposition, the court...
Source-derived case information.
- Citation
- [2018] KEHC 8948 (KLR)
- Parties
- Applicant: George Odhiambo Awinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 67 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence commuted to period served; applicant released
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Judicial Discretion, Revision of Sentence, Custodial Vs Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Odhiambo Awinda
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the Applicant was harsh or excessive in the circumstances.
- 2 Whether the trial magistrate exercised proper judicial discretion in sentencing the Applicant to a custodial sentence.
- 3 Whether the Applicant's circumstances and conduct since incarceration warrant a revision of sentence.
Ratio Decidendi
The High Court found that the trial magistrate exercised proper judicial discretion in sentencing the Applicant to a legal custodial sentence for the offence of stealing a motor vehicle. However, considering the Applicant's remorse, reformation, personal circumstances, and the State's lack of opposition, the court exercised its discretion to commute the sentence to the period already served. The Applicant was ordered to be released forthwith unless otherwise lawfully held.
Court Disposition
sentence commuted to period served; applicant released
Orders
- The Applicant's sentence is commuted to the period already served.
- The Applicant is ordered set at liberty forthwith and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.67 OF 2017
GEORGE ODHIAMBO AWINDA......................APPLICANT
VERSUS
REPUBLIC.....................................................RESPONDENT
RULING
The Applicant, George Odhiambo Awinda was charged with offence of stealing a motor vehicle contrary to Section 278A of the Penal Code. The particulars of the offence were that on 6th August 2010 at Huruma Flat Nairobi County, the Applicant, jointly with others not before court stole a motor vehicle Toyota Shark Matatu Registration No.KBJ 093K valued at Kshs.1. 3 million, the property of Riziki Akugu Nyabali. When the Applicant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to serve three years imprisonment.
The Applicant has applied to this court for revision of sentence. He states that he is ailing and is currently under medication. He had lost his child while in prison. He pleads with the court to sentence him to serve a non-custodial sentence. During the hearing of the application, the Applicant told the court that he was remaining with ten (10) months of his sentence, having served fifteen (15) months of his prison term. In the period that he has been in prison, he had reformed, had learnt many skills that will assist him upon his release from prison. He pleaded with the court to exercise leniency. Ms. Kimiri for the State told the court that she was not averse to the court favourably considering the Applicant’s application for reduction of sentence noting that the Applicant had already served a substantial part of his sentence.
When the trial magistrate sentenced the Applicant to serve the custodial sentence, it was exercising judicial discretion. This court can only interfere with such exercise of discretion if it is established, either that the sentence was too harsh or too lenient in the circumstances. The court will also interfere with the imposition of the custodial sentence if it is established that the trial magistrate applied the wrong principles of the law in sentencing the Applicant or that the sentence was illegal. In the present appeal, it was clear to this court that the trial court sentenced the Applicant to serve a legal custodial sentence. However, this court has noted that since the Applicant’s incarceration, he has learnt his lesson. He is remorseful and undertakes to be a useful member of the society upon his release. The State is not opposed to the Applicant’s early release.
In the premises therefore, this court will exercise its discretion and commute the Applicant’s sentence to the period served. The Applicant is ordered set at liberty forthwith and released from prison unless otherwise lawfully held. It is so ordered.
DATED AT NAIROBI THIS 8TH DAY OF FEBRUARY 2018
L. KIMARU
JUDGE