[2019] KEHC 10771 (KLR)
The court found that the offences of forgery and obtaining by false pretences for which the respondent was convicted are serious, carrying a maximum penalty of life imprisonment. The trial court erred by imposing a sentence of probation, which was not commensurate with the gravity of the offences. The court held...
Source-derived case information.
- Citation
- [2019] KEHC 10771 (KLR)
- Parties
- Applicant: James Mbaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 30 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Revision of Sentence
- Outcome
- Application for revision allowed; probation sentence set aside and custodial sentence imposed.
- Judges
- BB Limo
- Legal Topics
- Sentencing Revision, Forgery, Obtaining by False Pretences, Probation Vs Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mbaka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Revision of Sentence
Legal Issues
- 1 Whether the sentence of 3 years probation imposed on the respondent for multiple counts of forgery and obtaining by false pretences was legal and proper.
- 2 Whether the trial court erred by failing to impose a custodial sentence commensurate with the seriousness of the offences committed.
Ratio Decidendi
The court found that the offences of forgery and obtaining by false pretences for which the respondent was convicted are serious, carrying a maximum penalty of life imprisonment. The trial court erred by imposing a sentence of probation, which was not commensurate with the gravity of the offences. The court held that the trial court was unduly influenced by the probation report, which is not binding, and failed to consider the need for a custodial sentence as required by law. Exercising its revisionary powers under Section 364(1)(a) of the Criminal Procedure Code, the High Court set aside the probation sentence and substituted it with a custodial sentence of 3 years imprisonment for...
Court Disposition
Application for revision allowed; probation sentence set aside and custodial sentence imposed.
Orders
- The sentence of 3 years probation passed on the applicant is set aside.
- The applicant is sentenced to 3 years imprisonment for counts 4, 6, 8, and 10.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
MISC. CRIMINAL APPLICATION NO.30 OF 2018
JAMES MBAKA...................................................................APPLICANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
(From original conviction and sentence in Criminal Case No. 517 of 2013 of the Chief Magistrate's Court at Chuka).
R U L I N G
1. The State through the office of Director of Public Prosecution has applied revision of sentence handed out on JAMES MBAKA, the respondent herein who was found guilty of 4 counts of forgery contrary to Section 350(1) of the Penal Code and four additional counts of obtaining by false pretences contrary to Section 320 of the Penal Code. The Respondent upon conviction was sentenced to serve 3 years probation, by trial court a sentence the State felt was too lenient and hence this application for revision dated 16th October, 2018.
2. The office of the Director of Public Prosecution has contended that, they called a total of 14 witnesses to prove their case at the trial court and tendered a total of 21 documents as exhibits.
3. This court called for the lower court file with a view to satisfying myself on the legality, correctness and propriety of the proceedings and the sentence passed against the respondent pursuant to the provisions of Section 362 of the Criminal Procedure Code.
4. This court having gone through the proceedings and the Judgment, invited both the applicant and the Respondent to make representations regarding the application for review. The Respondent on his part stated that he had reconciled with the complainant and that he was ready to return back the property to them. However that is not what was before this court. What is before me is whether the sentence meted out against the respondent was legal and proper.
5. The offences for which the respondent was convicted indeed are serious as contended by Mr. Machirah learned counsel for Office of Director of Public Prosecution. Under Section 350(1) of the Penal Code the maximum sentence for the offence of forgery is life imprisonment. The applicant was charged with counts of forgery and convicted on all the 8 counts after a full trial. In my considered view, the applicant should have saved the trial court's judicial time and the prosecution the trouble of assembling all the witnesses and exhibits to prove their case against him. He ought to have returned the properties to the owner before trial commenced. This court agrees with the applicant that the respondent should have been handed a custodial sentence for the felonious acts he committed against complaint and the trial court failed to pass an appropriate sentence in accordance with the law. The trial court appears to have been unnecessarily influenced by the probation report which was not binding to court and in the end meted a sentence that was not commensurate with the serious offences committed.
6. In the exercise of this count's 3 powers under Section 364(1) (a) of the Criminal Procedure Code the court sets aside the sentence of 3 years probation passed on the applicant and in its place, sentence him to 3 years imprisonment for counts 4, 6, 8 and 10 and 9 months imprisonment on counts 3,7,11 and 12. The both sentences shall run concurrently.
Dated, signed and delivered at Chuka this 24th day of January, 2019.
R. K. LIMO
JUDGE
24/1/2019
Ruling, dated, signed and delivered in open court in presence of the Respondent in person and Momanyi for applicant.
R.K. LIMO
JUDGE
24/1/2019