[2023] KEHC 23393 (KLR)
The court found that the sentence review report did not recommend the applicant for community rehabilitation due to concerns for his safety, as the community remained hostile and his security could not be guaranteed. Additionally, the Probation Officer was unable to supervise the applicant under the prevailing...
Source-derived case information.
- Citation
- [2023] KEHC 23393 (KLR)
- Parties
- Applicant: Josphat Malusha Mghana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E009 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentence Review, Probation Orders, Manslaughter Conviction, Rehabilitation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Malusha Mghana
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the applicant is eligible for a probation order for the remainder of his sentence.
- 2 Whether the court has jurisdiction to review the applicant's sentence based on alleged constitutional violations.
- 3 Whether the applicant's release to community rehabilitation would endanger his safety.
Ratio Decidendi
The court found that the sentence review report did not recommend the applicant for community rehabilitation due to concerns for his safety, as the community remained hostile and his security could not be guaranteed. Additionally, the Probation Officer was unable to supervise the applicant under the prevailing circumstances. The court also noted that there was no substantiated evidence of constitutional rights violations to warrant its jurisdiction to review the sentence. Consequently, the application for sentence review and probation was dismissed as the applicant was not suited for such orders under the circumstances presented.
Court Disposition
application dismissed
Orders
- The application for sentence review and probation is dismissed.
- No orders are granted as sought by the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
Mghana v Republic (Miscellaneous Application E009 of 2023) [2023] KEHC 23393 (KLR) (11 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23393 (KLR)
Republic of Kenya
In the High Court at Voi
Miscellaneous Application E009 of 2023
GMA Dulu, J
October 11, 2023
Between
Josphat Malusha Mghana
Applicant
and
Republic
Respondent
Ruling
1. The applicant Josphat Malusha Mghana was tried and convicted on January 19, 2017 of manslaughter contrary to section 202 as read with section 205 of the Penal Code in Voi SPM Criminal Case No. 885 of 2014. He was sentenced to fifteen (15) years imprisonment.
2. He appealed to this court in Voi High Court Criminal Appeal No. 25 of 2017, which appeal was dismissed on May 29, 2018 and conviction and sentence affirmed.
3. He has now come to this court through the present application under article 22, 23, 25, 27, 28, 50(2) of the Constitution filed on January 19, 2023 seeking orders:-1. That the court be pleased to grant him probation order if his circumstances so fit since he has only two (2) years remaining to the end of his sentence.2. That the court be pleased to call for a confidential report from prison so as to be sufficiently informed about his rehabilitation.3. Any other orders that the court deems fit to give in the interest of justice.
4. This court ordered the filing of a sentence review report, and same was filed on March 10, 2023 signed by John Riungu Probation Officer Voi, in which it is concluded as follows:-“…before you is a petitioner who is 43 years old. He prays for leniency and wishes to be considered for community rehabilitation for the remainder of his sentence which is about 20 months. However, his security is not guaranteed if he is considered especially from the deceased members of the community. In view of the prevailing scenario, a review of his sentence to a community rehabilitation is respectfully not recommended.”
5. The applicant and the Director of Public Prosecutions filed written submissions to the application, with the applicant urging this court to grant him the prayers sought, while the Director of Public Prosecutions states that this court has no jurisdiction to entertain the present application in which the applicant alleges violation of his constitutional rights, which is not supportable by any evidence, and secondly, the statutory sentence for the offence of manslaughter was life imprisonment.
6. This application will fail because, the sentence review report indicates that reviewing the appellant’s sentence to production could as well endanger his own life. Thus reviewing his sentence will not be in his favour.
7. Secondly, reviewing his sentence to probation will call for supervision by the Probation Officer, whom in this case, is not able to do so because of the peculiar circumstances of the community who are hostile. The applicant is therefore not suited for review of sentence.
8. I thus disallow the application, and decline to grant any of the orders sought. The application is hereby dismissed.
DATED, SIGNED AND DELIVERED THIS 11TH DAY OF OCTOBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMs. Ondeyo for StateApplicant