[2012] KEHC 1092 (KLR)
The court found that there was no evidence on record that the applicant was informed of the terms and conditions of his probation. The value of the stolen items was minimal and the offence was a misdemeanor. The trial magistrate failed to consider the option of a fine or a less severe penalty for breach of...
Source-derived case information.
- Citation
- [2012] KEHC 1092 (KLR)
- Parties
- Applicant: John Lawrence Kimathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 442 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Bail and Review
- Outcome
- sentence revised; applicant discharged conditionally
- Legal Topics
- Stealing Offence, Probation Orders, Sentencing Review, Misdemeanor Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Lawrence Kimathi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Bail and Review
Legal Issues
- 1 Whether the sentence imposed for breach of probation was appropriate given the nature of the offence and value of the stolen items.
- 2 Whether the anomalies in the trial process warranted revision of the sentence.
Ratio Decidendi
The court found that there was no evidence on record that the applicant was informed of the terms and conditions of his probation. The value of the stolen items was minimal and the offence was a misdemeanor. The trial magistrate failed to consider the option of a fine or a less severe penalty for breach of probation. These anomalies rendered the sentence of 17 months imprisonment improper. The court exercised its revisionary jurisdiction, set aside the custodial sentence, and discharged the applicant under section 35(2) of the Penal Code on condition that he does not commit any offence within the next six months.
Court Disposition
sentence revised; applicant discharged conditionally
Orders
- The sentence of 17 months imprisonment is set aside.
- The applicant is discharged under section 35(2) of the Penal Code on condition that he does not commit any offence within the next 6 months.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Embu
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JOHN LAWRENCE KIMATHI.......................................APPLICANT
VERSUS
REPUBLIC...............................................................RESPONDENT
RULING ON BAIL & REVIEW
The applicant herein was charged with the offence of Stealing contrary to Section 275 of the Penal Code. He admitted the charge and facts and was convicted. Subsequently he was placed on probation for two years. This was on 12/10/2010. On 28/6/2012 the Probation Officer applied for applied for warrant of arrest against the applicant.
And on 6/11/2012 the applicant was arraigned in Court. Its not clear from where he was arrested. As has been pointed out by counsel, when the applicant was placed on probation there isnothing on record to show that the terms and conditions were explained to him by the Court. I have decided to deal with the issue of Revision straight away as this is a very straight forward case.
The value of the stolen items is less than ks.5000/=. The offence is a misdemeanor. Even in failing to report for Probation the learned trial Magistrate could have given him an option of a fine. He did not.
Because of the anomalies I have raised above I find that this is a fit case for review. I set aside the sentence of 17 months imprisonment. He is discharged under section 35(2) of the Penal Code on condition that he does not commit any offence within the next 6 months.
The incharge G.K. Prison Embu to explain this to him before his release as this Court will not be sitting tomorrow.
DATED AND DELIVERED AT EMBU THIS 8TH DAY OF NOVEMBER 2012.
H.I. ONG'UDI
J U D G E
In the presence of;
Mr. Momanyi for Applicant
Mr. Omayo for State
Njue CC