[2016] KEHC 4468 (KLR)
The High Court found that the trial magistrate exercised proper judicial discretion in sentencing the Applicant to a custodial term. The trial court had considered all relevant circumstances, including giving the Applicant an opportunity to settle the matter with the complainant, which he failed to do. The sentence...
Source-derived case information.
- Citation
- [2016] KEHC 4468 (KLR)
- Parties
- Applicant: John Victor Oburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 91 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Judicial Discretion, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Victor Oburu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the custodial sentence imposed on the Applicant was excessive or warranted interference by the High Court.
- 2 Whether the trial court failed to consider relevant factors such as time spent in remand or the Applicant's health in sentencing.
Ratio Decidendi
The High Court found that the trial magistrate exercised proper judicial discretion in sentencing the Applicant to a custodial term. The trial court had considered all relevant circumstances, including giving the Applicant an opportunity to settle the matter with the complainant, which he failed to do. The sentence was neither excessive nor based on wrong principles. The Applicant's remorse and health condition did not outweigh the seriousness of the offence or justify interference with the sentence. The application for revision of sentence was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.91 OF 2016
JOHN VICTOR OBURU.......................................................APPLICANT
VERSUS
REPUBLIC........................................................................RESPONDENT
RULING
The Applicant, John Victor Oburu was charged with the offence of obtaining money by false pretencescontrary to Section 313 of the Penal Code. The particulars of the offence were that between 28th August 2013 and 12th September 2013 at Barclays Bank of Kenya Limited, Moi Avenue Branch Nairobi, the Applicant, together with others not before court, with the intent to defraud, obtained from Kevin Mukuna Mbundu a sum of Kshs.750,000/- by falsely pretending that he was in a position to sell to the said Kevin Mukuna Mbundu a motor vehicle, a fact he knew to be false. The Applicant pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to serve two (2) years imprisonment.
The Applicant has applied to this court to have his sentence revised. The Applicant told the court that he was remorseful and contrite for the offence that he had committed. He told the court that he was suffering from an illness that he could not obtain treatment while in prison. He submitted that the trial court did not take into account that he had been in remand custody for a period of ten (10) months before his conviction. He pleaded with the court to sentence him to serve a non-custodial sentence. Ms. Kule for the State opposed the application. She submitted that the Applicant had not made good the loss he caused to the complainant. The custodial sentence meted on him by the trial court was lawful and lenient in the circumstances.
When the trial magistrate sentenced the Applicant to serve the custodial sentence, she 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. In the present application, it was clear to this court that the trial court took into account the entire circumstances of the case before she sentenced the Applicant to serve the said custodial sentence.
In fact, during the hearing of the case, the trial court gave the Applicant the opportunity to make good the agreement that he entered with the complainant. This is what the trial court said:
“ When Victor claimed there was breach of contract and that this was a civil matter I ruled against him and gave him an opportunity to avail the vehicle and then have Kevin pay the additional price money that he was claiming, I encouraged an out of court settlement because I figured all Kevin wants is a vehicle and if Victor has the same then the sale and purchase could still go on, but still Victor failed and that in my conclusion is because there was never a vehicle available for sale to Kevin and whatever Kevin was told by Victor were just lies and misrepresentations and Victor knew very well that he was taking money for a vehicle he could not sell because he did not have it because if he did, he could have sold it on the many occasions he had like when Kevin agreed to top up the purchase price and when his court gave him an opportunity to settle.”
The Applicant was sentenced to serve the said custodial sentence on 1st July 2015. It is clear to this court that the custodial sentence that the Applicant is serving fits the crime that he committed. He was given every opportunity by the court to settle the matter with the complainant. He chose not to. He was willing to risk all even when he faced the possibility of serving a custodial sentence. He cannot now plead with this court to exercise leniency on him.
The Applicant’s application for review of sentence lacks merit and is hereby dismissed. It is so ordered.
DATED AT NAIROBI THIS 19TH DAY OF MAY 2016
L. KIMARU
JUDGE