[2016] KEHC 822 (KLR)
The court found that the applicant's grounds were purely mitigation and did not challenge the legality or propriety of the conviction or sentence. The trial court had considered both mitigation and a pre-sentence report before sentencing. The sentence imposed was within the law and the proceedings were regular....
Source-derived case information.
- Citation
- [2016] KEHC 822 (KLR)
- Parties
- Applicant: James Mukathe Gacwe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 13 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Revision
- Outcome
- application dismissed
- Legal Topics
- Sentencing Review, Plea of Guilty, Alcoholic Drink Control, Mitigation, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mukathe Gacwe
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial court was legal and proper.
- 2 Whether the applicant is entitled to a review of sentence after pleading guilty.
- 3 Whether the grounds raised amount to an appeal or mere mitigation.
Ratio Decidendi
The court found that the applicant's grounds were purely mitigation and did not challenge the legality or propriety of the conviction or sentence. The trial court had considered both mitigation and a pre-sentence report before sentencing. The sentence imposed was within the law and the proceedings were regular. There was no basis for the High Court to interfere with the sentence or conviction under its revisionary jurisdiction. Accordingly, the application for review was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- No interference with the trial court's sentence or proceedings.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
MISC. CRIMINAL APPLICATION CASE NO. 13 OF 2016
(In the matter of an intended Appeal)
BETWEEN
JAMES MUKATHE GACWE.......................................................APPLICANT
- VERSUS -
REPUBLIC...............................................................................RESPONDENT
RULING ON REVISION
1. JAMES MUKATHE GACWE ("the Applicant") was on 20th July, 2016 arraigned before the Senior Resident Magistrate's Court, Marimanti with the offence of being in possession of Alcoholic Drink Contrary to Section 27 (1) (b) as read with Section 27 (4) of the Alcoholic Drink Control Act, 2010 ("the relevant law"). It was alleged that on 19th July, 2016, at Mwanyani Location in Tharaka South District, Tharaka Nithi County, the Applicant was found in possession of 120 litres of alcoholic drink namely, Nguzo which was not in conformity with the relevant law. The Applicant pleaded guilty, was convicted and fined Kshs.200,000/- in default to serve two (2) years imprisonment.
2. On 22nd September, 2016, the Applicant lodged an application to be allowed to lodge "a mitigation appeal" out of time. I have looked at the application and the document christened "Grounds of Appeal". The same are not grounds of appeal perse. They only amount to mitigation grounds. They do not challenge the trial court's decision on any aspect. I consider this to be an application for review.
3. Under Section 362 of the Criminal Procedure Code, this court is granted power to call for a lower court record and satisfy itself as to the legality or propriety of the proceedings or sentence. I have looked at the trial court's record. The Applicant pleaded guilty and is therefore not entitled to appeal therefrom (see section 348 Criminal Procedure Code). I have looked at the sentence and I find the same to have been in accordance with the law. I have seen that the trial court not only considered the mitigation given by the Applicant but also called for and considered a pre-sentence report which was negative to the Applicant.
4. In this regard, I find nothing untoward in the trial court's record to warrant any interference with its decision. The proceedings were regular as was the sentence legal.
5. The Applicant should be of good conduct and pray to benefit from the CSO programme at the appropriate time.
Accordingly, I decline to review the sentence and dismiss the Application.
DATEDand Delivered at Chuka this 20th day of December, 2016.
A.MABEYA
JUDGE