[2023] KEHC 26256 (KLR)

Kipusi v Republic (Criminal Miscellaneous Application E013 of 2023) [2023] KEHC 26256 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26256 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Miscellaneous Application E013 of 2023

F Gikonyo, J

November 21, 2023

Between

Andrew Lekishon Kipusi

Applicant

and

Republic

Respondent

Judgment

1. In the Notice of Motion dated 04. 05. 2023, the applicant seeks a sentence review and reduction of the current sentence of three (3) years imprisonment or substitution with a non-custodial sentence.

2. A perusal of the copy of the charge sheet attached to the application reveals that the applicant was charged with the offence of stealing stock contrary to section 278 of the Penal Code.

3. From the grounds set out on the face of the applications as well as the affidavit in support, his main grounds for applying are; (i) that he pleaded guilty to the offence; (ii) that he has gone through counseling; and (iii) that he is the sole breadwinner of his family.

4. In his oral submissions, the applicant prayed for a non-custodial sentence.

5. In response, Mr. Okeyo for the State opposed the application. He urged this court to consider that the sentence was lenient as the maximum sentence for the offence of stealing livestock is 14 years and that the applicant’s mitigation was considered. Therefore, there is no error in principle.

Analysis And Determination. 6. The court has considered the application and the rival submissions by parties. Is revision of sentence merited?

7. It is the right of a person who has been convicted and sentenced for a criminal offence, to appeal or apply for review by a higher court as prescribed in law- a right that is part of the right to a fair trial provided in article 50 (2) (q) of the Constitution.

8. In the exercise of the power of review, the High Court may call for and examine the record of the trial court to satisfy itself of the correctness, legality, or propriety of any finding or sentence or order, or regularity of any proceeding of a subordinate court. See section 362 of the Criminal Procedure Code (hereinafter the CPC).

9. But, courts should be prepared to read section 362 of the CPC in light of article 165(6) & (7) of the Constitution; expand it to cover ‘the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.’

10. Is there lawful ground or reason to revise the sentence?

11. The reasons advanced by the applicant are that he has undergone counseling, is a sole breadwinner, and should get the benefit of a reduced sentence or a non-custodial sentence.

12. The applicant has not argued or even suggested that the sentence passed was illegal or improper, or that the trial court acted on wrong principle or omitted relevant factors or considered irrelevant factors in sentencing, or that the proceeding was irregular or in violation of his right or fundamental freedom. His were generalized reasons which do not suffice interference with the discretion of the trial court in sentencing or warrant upsetting the sentence imposed by the lower court.

13. The applicant has not presented any ground that impeaches the sentence. As argued by the respondent, the sentence was lawful and appropriate in the circumstances of the case. f

14. In the upshot, in the absence of any material to impeach the sentence or exercise of discretion by the trial court, the application lacks merit and is dismissed.

15. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 21ST DAY OF NOVEMBER, 2023. F. GIKONYO M.JUDGEIn the Presence of:Applicant – presentOkeyo for DPP - present