[2014] KEHC 6075 (KLR)
The court held that while the first accused pleaded guilty and was sentenced to community service, the applicant, who pleaded not guilty and was convicted after a full trial, received a significantly harsher sentence. The court emphasized the need for proportionality and fairness in sentencing, particularly where...
Source-derived case information.
- Citation
- [2014] KEHC 6075 (KLR)
- Parties
- Applicant: Lintons Chileo Dzombo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 12 of 2014
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- Probation report ordered before final determination on sentence revision.
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Disparity, Stealing by Servant, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lintons Chileo Dzombo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed on the applicant was manifestly excessive compared to the co-accused in similar circumstances.
- 2 Whether the principle of fairness in sentencing was upheld where co-accused are convicted on the same facts.
Ratio Decidendi
The court held that while the first accused pleaded guilty and was sentenced to community service, the applicant, who pleaded not guilty and was convicted after a full trial, received a significantly harsher sentence. The court emphasized the need for proportionality and fairness in sentencing, particularly where co-accused are convicted on the same facts. The judge noted that justice must not only be done but must be seen to be done, and that there should be a measure of balancing in sentencing outcomes. Consequently, the court called for a probation report for the applicant before making a final determination on whether the sentence should be revised.
Court Disposition
Probation report ordered before final determination on sentence revision.
Orders
- A probation report for the applicant is to be prepared.
- Mention scheduled for 7th April, 2014.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 12 OF 2014
LINTONS CHILEO DZOMBO......................................APPLICANT
VERSUS
REPUBLI...............................................................RESPONDENT
RULING ON REVISION
The Applicant vide a letter dated 18th March, 2014 did call for the revision of the Judgment by Honourable Odenyo Senior Principal Magistrate dated 2nd January, 2014 for reasons that the applicant was Sentenced to two (2) years imprisonment with no option of fine whereas the Co–Accused was Sentenced to three (3) months Community Service.
The two accused persons were jointly charged with stealing by servant contrary to section 281 of the Penal Code.
The particulars being that:-
“On the 21st day of March, 2011 at Voyager Hotel in Nyali – Mombasa County they jointly stole croma fats 5 kilogrammes, Neebol 5 kilogrammes, 2 Taifa wheat flour all valued at Ksh. 1,630 the property of Voyager Hotel which came into their possession by virtue of their employment”.
The first Accused pleaded guilty to the charges and was Convicted and Sentenced to three (3) months Community service.
The 2nd Accused pleaded not guilty and his case proceeded to full hearing and determination and was thereafter Convicted and Sentenced to two (2) years imprisonment.
It is noted that the first Accused did not waste Judicial time. The 2nd Accused cannot be faulted either because under article 50 of the Constitution he is entitled to a fair hearing.
This Court takes the view there should be some measure of balancing in Sentencing more so where two Accused persons are found guilty and convicted from the same facts in the same case. Justice must not only be done but it should be seen to have been done.
It is with this in mind that I call for a probation report for the 2nd Accused.
Mention on 7th April, 2014.
Ruling delivered dated and signed this 26th day of March, 2014.
…..................
M. MUYA
JUDGE
26TH MARCH, 2014
In the presence of:-
Learned State Counsel Miss Fundi
Learned Counsel for the Applicant Mr. Nabwana
Court clerk Musundi