[2018] KEHC 6253 (KLR)
The court found that the conviction and sentence imposed on the applicant were lawful and within statutory limits. However, considering the applicant's remorse, health condition, and the fact that he had served nearly half of his sentence, the court exercised its discretion under its revisionary jurisdiction to...
Source-derived case information.
- Citation
- [2018] KEHC 6253 (KLR)
- Parties
- Applicant: Ken Moses Andiwo; Respondent: State
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 113 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application for Withdrawal of Appeal and Revision of Sentence
- Outcome
- Application for withdrawal of appeal allowed; sentence revised to community service.
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Mitigating Factors, Non Custodial Sentence, Criminal Appeal, Theft Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ken Moses Andiwo
Applicant
State
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Withdrawal of Appeal and Revision of Sentence
Legal Issues
- 1 Whether the applicant's appeal against conviction and sentence should be withdrawn.
- 2 Whether the sentence imposed on the applicant should be revised in light of mitigating circumstances.
Ratio Decidendi
The court found that the conviction and sentence imposed on the applicant were lawful and within statutory limits. However, considering the applicant's remorse, health condition, and the fact that he had served nearly half of his sentence, the court exercised its discretion under its revisionary jurisdiction to revise the sentence. The court ordered the applicant's release from prison to serve three months of community service at a health centre near his home, thereby substituting the remainder of the custodial sentence with a non-custodial one. The appeal was marked as withdrawn, and the application for sentence revision was allowed.
Court Disposition
Application for withdrawal of appeal allowed; sentence revised to community service.
Orders
- The appeal is marked as withdrawn on application by the convict.
- The applicant is ordered to be released to serve three months community service at Masogo Health Centre in Awasi–Muhoroni.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
(STEALING)
H.C. CR. APPEAL/ REVISION NO. 113 OF 2018
KEN MOSES ANDIWO.........................APPLICANT
VERSUS
STATE...................................................RESPONDENT
(Being an appeal against both the conviction and the sentence dated 14. 9.2017 in Criminal Case No. 440 of 2017 in Bondo Principal Magistrate’s Court before Hon. M. Obiero – PM)
RULING
1. The convict Ken Moses Andiwo a 30 year old male adult of sound mind was on 14. 9.2012 and on his own plea of guilty for the offence of stealing, convicted and sentenced to serve 18 months imprisonment. The property subject of the charge was recovered and handed over to the owner after the conviction.
2. The convict is serving his 18 months imprisonment and has served almost half of it. He lodged an appeal against conviction and sentence but is before this Court seeking to withdraw the appeal and he orally applies that the Court do consider revision of his sentence as he is remorseful, was influenced by peer pressure and that he is sickly and on ARV medication in prison but that he has a challenge with the diet.
3. The Prosecution Counsel Mr. Okach has no objection to the application for revision of sentence and withdrawal of the appeal. I have carefully considered the 2 applications by the convict. I am satisfied that there would be no merit in the appeal as filed. The same is hereby marked as withdrawn on application by the convict, to pave way for an application for revision of sentence.
4. On the application for revision for sentence, this Court is enjoined by Section 362 of the Criminal Procedure Code to call for record of proceedings of the lower Court to satisfy itself as to the correctness, legality or propriety of the finding, sentence or order recorded or passed and to the regularity of any proceedings of any such subordinate Court. The Court upon calling for such record or proceedings is empowered by Section 364 of the CPC, to, among others, in the case of any other order other than an acquittal, alter or revise the order. In this case, the applicant does not challenge the propriety of conviction or sentence. He only seeks that this Court considers revision of sentence to accord him an opportunity to serve non-custodial sentence. The conviction and sentence meted out to him were sound and lawful and the prison sentence of 18 months for the offence of theft is within the limits stipulated under Section 275 of the Penal Code. The maximum is three years.
5. However, owing to the mitigating factors given by the convict, this Court in exercise of its revision jurisdiction and discretion hereby makes an order that the convict having served nearly half of the 18 months sentence, he is hereby ordered to be released to serve three months community service at Masogo Health Centre in Awasi– Muhoroni which is near his home area as he recuperates. Therefore, unless lawfully held, the Accused Person’s Application is hereby allowed and sentence revised.
Orders accordingly.
Dated, delivered and signed at Siaya this 24th day of May, 2018.
R. E. ABURILI
JUDGE