[2020] KEHC 1933 (KLR)
The High Court found that the trial magistrate had already considered the applicant's medical condition, family circumstances, remorse, and criminal record when imposing sentence. The sentence was both legal and lenient, especially given the large sum lost and lack of restitution. The applicant had nearly completed...
Source-derived case information.
- Citation
- [2020] KEHC 1933 (KLR)
- Parties
- Applicant: John Wachira Githinji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 541 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- AM Cockar
- Legal Topics
- Sentence Revision, Stealing Offence, Medical Condition in Sentencing, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wachira Githinji
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant's medical condition and time served justify revision of the custodial sentence to a non-custodial sentence.
- 2 Whether the trial court's sentence was correct, legal, and proper in light of the applicant's circumstances.
Ratio Decidendi
The High Court found that the trial magistrate had already considered the applicant's medical condition, family circumstances, remorse, and criminal record when imposing sentence. The sentence was both legal and lenient, especially given the large sum lost and lack of restitution. The applicant had nearly completed his sentence, and the court found no error, illegality, or impropriety in the original sentence or proceedings. The application for revision did not meet the threshold for intervention under sections 362 and 364 of the Criminal Procedure Code. Accordingly, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 8th July, 2020 is dismissed in its entirety.
Full Case Text
Judgment text and source record
25 paragraphs
REPUPLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION CASE NO. 541 OF 2020
[Being a review of the ruling on sentence by Hon, M. W. Njagi (MS.) made on 2nd July, 2019]
Lesiit, J.
JOHN WACHIRA GITHINJI.......................................APPLICANT
VERSUS
REPUBLIC.................................................................RESPONDENT
RULING
1. The Applicant, JOHN WACHIRA GITHINJI,has filed a Notice of Motion application dated 8th July, 2020. The application is brought under section 362and364of theCriminal Procedure Code (CPC). He seeks one prayer thus:
“The Honourable court be pleased to consider Applicant’s medical condition and revise the remainder of the sentence to a non-custodial sentence.”
2. The application is based on the following grounds:
(a) The Applicant suffers from severe heart condition.
(b) The Applicant has served three quarter (3/4) of his sentence.
3. In his Supporting Affidavit, the Applicant deposes that he is serving two (2) years’ imprisonment at Nairobi Remand and Allocation Maximum Security Prison having been found guilty of the offence of Stealing contrary to section 275 of the Penal Code.The Applicant said he is sincerely remorseful for his actions and will never repeat the offence again. He also stated that he suffers from severe heart condition which requires frequent visits to a cardiologist for check-up and he annexed his Medical Report.
4. The Applicant further stated that he has a heart problem and that he has not been taken by the Prison authorities to Kenyatta National Hospital to see a cardiologist since COVID-19 outbreak in March 2020. He also stated that he has contracted Covid-19 due to prison conditions. He stated that the last clinic he was supposed to attend was November 2019 which was postponed to March 2020 due to the Covid-19 pandemic. The Applicant deposes that he has served three quarters of his sentence and asks that the remaining one month of his sentence be waived. He has 25 days left to serve the sentence.
5. In response to the application, the learned counsel for the prosecution stated that the Applicant was charged with Stealing and sentenced to 2 years’ imprisonment. The Applicant was running an account and that he benefited with Kshs. 40 million less 15 million out of the 80 million stolen. The Government recovered 15 million. In their view, the prosecution stated that the sentence was lenient. The Applicant was sentenced on 20th July, 2019 and that he should benefit 8 months of remission. The learned Counsel submitted that the Applicant will be ending his sentence in a month’s time and urged that the Applicant should serve the entire period remaining. The Counsel also stated that as to the Applicant’s medical condition, Prison can attend to him and avail medication.
6. This was an application for review of sentence under section 362 and 364 of the CPC. The court’s powers of revision under these two sections of the CPCare limited to satisfying itself as to the correctness, legality or propriety of any findings, sentence, or order recorded or passed and as to the regularity of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under Article 165(6) of the Constitution the court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of the lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice. (See Chris Phillip Obure v Republic [2020] eKLR)
7. The learned trial magistrate took into account the Applicant’s medical condition, his family dependence on him, including his sickly wife and mother, his remorsefulness for the offence and his past criminal free record. For the amount of money that was lost through the Applicant in the sum of K.shs. 40 million, the sentence imposed was both legal and lenient. Furthermore, no olive branch has been offered in terms of restitution of the lost public funds. Besides, the Applicant has a short term of his sentence still remaining. He has literally served his entire sentence. Further, the learned trial magistrate was concerned, and rightly so, for the rise in similar cases involving syphoning of public funds.
8. Having carefully considered the Applicant’s application, his plea and the grounds and the law on which it was premised, together with the submissions by the State, the Probation Report and all the relevant factors, I find no merit in this application.
9. In the result, I dismiss the Notice of Motion dated 8th July, 2020 in its entirety.
DELIVERED THROUGH TEAMS THIS 22ND DAY OF OCTOBER, 2020
LESIIT, J
JUDGE