[2022] KEHC 10395 (KLR)
The court found that the applicant, a first offender, had already served a substantial period in remand custody—amounting to two years and four months—prior to and during the trial. The court recognized that one of the purposes of sentencing is rehabilitation and determined that the time already served was...
Source-derived case information.
- Citation
- [2022] KEHC 10395 (KLR)
- Parties
- Applicant: Daniel Gitau Migwi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 9 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application
- Outcome
- Application for review of sentence allowed; remainder of sentence set aside; applicant to be released unless otherwise lawfully held.
- Judges
- GWN Macharia
- Legal Topics
- Sentence Review, Remand Custody Credit, Non Custodial Sentence, House Breaking, Handling Stolen Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Gitau Migwi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the period spent in remand custody prior to sentencing should be taken into account in reviewing the applicant's sentence.
- 2 Whether the applicant's sentence should be substituted with a non-custodial sentence given the circumstances.
Ratio Decidendi
The court found that the applicant, a first offender, had already served a substantial period in remand custody—amounting to two years and four months—prior to and during the trial. The court recognized that one of the purposes of sentencing is rehabilitation and determined that the time already served was sufficient punishment for the offence. Consequently, the court set aside the remainder of the applicant's sentence and ordered his immediate release unless otherwise lawfully held.
Court Disposition
Application for review of sentence allowed; remainder of sentence set aside; applicant to be released unless otherwise lawfully held.
Orders
- The remainder of the applicant's sentence is set aside.
- The applicant is to be forthwith set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
Migwi v Republic (Miscellaneous Criminal Application 9 of 2020) [2022] KEHC 10395 (KLR) (31 March 2022) (Ruling)
Neutral citation: [2022] KEHC 10395 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application 9 of 2020
GWN Macharia, J
March 31, 2022
Between
Daniel Gitau Migwi
Applicant
and
Republic
Respondent
Ruling
1. The Applicant herein prays for review of his sentence by the same being substituted with a non-custodial one or that the period he served in remand custody prior to sentencing be taken into account.
2. The Respondent did not oppose the application.
3. The application is by way of Chamber Summons filed on 6th March, 2020 and supported by a self-sworn affidavit of even date.
4. The Applicant was the 1st accused and was jointly charged with another with 3 counts of House Breaking contrary to Section 304 (1) (b) and Stealing contrary to Section 279 (b) of the Penal Code. He was further charged with the offence of Handling Stolen Goods contrary to Section 322 (2) of the Penal Code.
5. The Applicant was found guilty in Count I and convicted accordingly. The 2nd accused was acquitted. The Applicant was then sentenced to serve 4 years’ imprisonment.
6. From the charge sheet, the Applicant was arrested on 3rd November, 2019. The sentence was passed on 27th February, 2020. He was in remand custody throughout the trial period. To date, the period spent in custody translates into 2 years and four months. He was a first offender. Taking into account that one of the purposes of sentence is to rehabilitate an offender, it is my view that the Applicant has served sufficient sentence.
7. Accordingly, I set aside the remainder of the sentence and order that the Applicant be forthwith set free unless otherwise lawfully held.
8. It is so ordered.
DATED AND DELIVERED THIS 31ST DAY OF MARCH, 2022. G. W. NGENYE-MACHARIAJUDGEIn the presence of: -Applicant in person.Ms. Maingi for the Respondent.