[2016] KEHC 7661 (KLR)
The High Court found that while the sentences imposed by the trial court were legal, the failure to adequately consider the applicant's status as a first offender and the significant period spent in remand amounted to a sufficient basis for reviewing the sentence. The court held that justice required the applicant's...
Source-derived case information.
- Citation
- [2016] KEHC 7661 (KLR)
- Parties
- Applicant: Masereka Osman Yahaya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 70 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- sentence reviewed and applicant released
- Legal Topics
- Sentencing Review, First Offender, Remand Period Credit, Illegal Presence, Forgery Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Masereka Osman Yahaya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentence imposed on the applicant was excessive in light of his status as a first offender and the period spent in remand.
- 2 Whether the trial court failed to consider relevant mitigating factors before sentencing.
Ratio Decidendi
The High Court found that while the sentences imposed by the trial court were legal, the failure to adequately consider the applicant's status as a first offender and the significant period spent in remand amounted to a sufficient basis for reviewing the sentence. The court held that justice required the applicant's sentence to be substituted with an order for immediate release, given that he had already served a substantial period in custody and would be repatriated to his home country. The review was justified to prevent an excessive or disproportionate punishment in the circumstances.
Court Disposition
sentence reviewed and applicant released
Orders
- The respective sentences imposed on the applicant are substituted with an order for his immediate release.
- The applicant shall be repatriated to his home country Uganda forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.70 OF 2016
MASEREKA OSMAN YAHAYA….………..…………………..APPLICANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
RULING
The applicant herein was charged with four counts as follows:
Count I: Stealing contrary to Section 368(1) as read with Section 275 of the Penal Code.
Count II: Being in possession of papers or implements of forgery contrary to Section 367(a) of the Penal Code.
Count III: Preparation to commit a felony contrary to Section 308(2) of the Penal Code.
Count IV: Being unlawfully present in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Kenya Citizenship and Immigration Act No.12 of 2011.
He was convicted in the four counts and in count I, was sentenced to pay a fine of Kshs. 30,000 in default serve four months imprisonment, in Count II, a fine of Kshs. 100,000/= in default 12 months imprisonment whilst in count III and IV a fine of Kshs. 200,000/= each in default 12 month imprisonment respectively. All the sentences were to run concurrently. It was further ordered that upon serving the sentence, he be repatriated to his country. The sentence was passed on 7th October, 2015.
By a Chamber Summons application filed in court on 17th February, 2016, he prays that the sentence be reviewed on ground that the same was excessive. In his Supporting Affidavit sworn on 8th February, 2016, he depones that the trial magistrate failed to consider that he was a first offender and that he had been in remand for one year and two months prior to the sentencing. The application is brought pursuant to Section 362 of the Criminal Procedure Code and it is prayed that the court calls for and examines the lower court record vide Chief Magistrate’s Court at Milimani Criminal Case No. 1147 of 2014 so as to satisfy itself as to the legality, correctness or propriety of the sentence passed.
I have accordingly considered the application. The sentences as passed were legal. However, taking into account that the applicant was a first offender, had already served one year and two months in remand, and would, in any case, be repatriated to his country, I think it is only justiciable to review the sentence in his favour. Having been sentenced on 7th October, 2015, I conclude that he has already served sufficient punishment. In the result, I substitute the respective sentences with an order that the applicant be and is hereby forthwith set free. He shall be repatriated to his home country Uganda.
DATED and DELIVERED this 26thday of April, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
The Applicant in person.
M/s Akuja for the Respondent.