[2020] KEHC 4141 (KLR)
The court declined to convert the applicants' remaining sentence to community service order or probation because there was no evidence presented to show that the applicants had earned remission reducing their remaining period of imprisonment to three years or less. The court found that, according to the charge...
Source-derived case information.
- Citation
- [2020] KEHC 4141 (KLR)
- Parties
- Applicant: Isaack Kimanzi Musee; Applicant: Joseph Mutio Mbuko; Applicant: Eric Mwanzia Mbiti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 15 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Conversion of Sentence to Community Service or Probation
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Sentencing, Remission of Sentence, Community Service Orders, Probation, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaack Kimanzi Musee
Applicant
Joseph Mutio Mbuko
Applicant
Eric Mwanzia Mbiti
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Conversion of Sentence to Community Service or Probation
Legal Issues
- 1 Whether the applicants are entitled to have the remainder of their sentence converted to community service order or probation.
- 2 Whether there is evidence that the applicants' remaining sentence is three years or less due to remission.
Ratio Decidendi
The court declined to convert the applicants' remaining sentence to community service order or probation because there was no evidence presented to show that the applicants had earned remission reducing their remaining period of imprisonment to three years or less. The court found that, according to the charge sheet, the applicants had been in custody for approximately ten years, and the assertion that only three years remained was not supported by evidence. The court held that without proof of remission or a reduced balance, it could not grant the orders sought.
Court Disposition
application dismissed
Orders
- The application for conversion of the remaining sentence to community service order or probation is declined.
- No order for community service or probation shall issue unless evidence of remission or reduced sentence balance is provided.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 15 OF 2020
ISAACK KIMANZI MUSEE................................1ST APPLICANT
JOSEPH MUTIO MBUKO..................................2ND APPLICANT
ERIC MWANZIA MBITI....................................3RD APPLICANT
VERSUS
REPUBLIC................................................................RESPONDENT
RULING
1. The 3 applicants (1) Issack Kimanzi Musee, (2) Joseph Mutio Mbuko and (3) Eric Mwanzia Mbiti were convicted and sentenced to death of capital robbery contrary to section 296(2) of the Penal Code Cap 63 Laws of Kenya.
2. They appealed all the way to Court of Appeal and lost in both conviction and sentence. They eventually sought re-sentencing via HCCRMisc. No. 22, 23 and 35 of 2018 and after full hearing this court relying on the Supreme Court case of Muruatetu & Another vs Republic [2017] eKLR. The sentence was reduced to 20 years sentence factoring in the period they were in custody.
3. They have now come once more in this court via HCCRMisc No. 15 of 2020 seeking the remaining 3 years of their sentence to be converted into C.S.O or Probation so that they can serve the same while out of prison but at their home areas.
4. According to the charge sheet they were arrested on 22/8/2010. Thus, they have been in custody for 10 years or thereabout according to the calculation thus it is not correct they have a balance of 3 years.
5. There is no evidence that they have been given a remission reducing their remaining period of 10 years to 3 years. Thus, will decline to make an order for C.S.O or Probation until the court is convinced by evidence that they have earned a remission or otherwise their balance is 3 years or less.
6. Orders accordingly.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 23RD DAY OF JULY, 2020.
……………….………………
C. KARIUKI
JUDGE