[2019] KEHC 2872 (KLR)
The court found that the petitioner's plea of age had already been conclusively determined by both the trial court and the High Court, and thus could not be relitigated in this petition. However, upon reviewing the sentence, the court considered the Sentence Review Report, which indicated that the petitioner had...
Source-derived case information.
- Citation
- [2019] KEHC 2872 (KLR)
- Parties
- Petitioner: Mbigiri Josephat Gati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 37 of 2018
- Procedural Posture
- Constitutional Criminal Petition / Judgment
- Outcome
- petition dismissed in part; sentence reviewed
- Judges
- AC Mrima
- Legal Topics
- Sentencing Review, Juvenile Justice, Plea of Age
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbigiri Josephat Gati
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Criminal Petition / Judgment
Legal Issues
- 1 Whether the petitioner's plea of age as a minor at the time of the offence and sentencing can be relitigated in this petition.
- 2 Whether the sentence imposed on the petitioner should be reviewed in light of the period already served and his rehabilitation.
Ratio Decidendi
The court found that the petitioner's plea of age had already been conclusively determined by both the trial court and the High Court, and thus could not be relitigated in this petition. However, upon reviewing the sentence, the court considered the Sentence Review Report, which indicated that the petitioner had served seven years, had demonstrated good character, and was remorseful. The court also noted that the petitioner's co-accused had long been released. In view of these factors, the court held that the period already served was sufficient for rehabilitation and reviewed the sentence accordingly, ordering the petitioner's immediate release unless otherwise lawfully held.
Court Disposition
petition dismissed in part; sentence reviewed
Orders
- The petition is dismissed on the ground of the plea of age.
- The sentence is reviewed to the period already served.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
[CORAM: MRIMA, J.]
CONST. CRIMINAL PETITION NO. 37 OF 2018
MJG....................................PETITIONER
-VERSUS-
REPUBLIC....................................STATE
JUDGMENT
1. The Petitoner was jointly charged, tried and convicted with others with the offence of grevious harm. He was sentenced to 20 years imprisonment.
2. The Petitioner filed this Petition against the sentence. He contended that he was a minor when he committed the offence and when he was sentenced to a term of imprisonment. The Petitioner submitted that he had raised the plea of age before the trial court and the High Court on appeal in vain. He prayed that sentence be set aside and he be placed at liberty.
3. The State opposed the Petition. It argued that the plea of age was already raised before the trial court and on appeal at the High Court. It cannot therefore be relitigated. However, the State was not averse to the release of the Petitoner in view of the period he had served in prison.
4. I have considered the Petition. It is true the plea of age was conclusively dealt with by the trial court and the High Court. The Petitioner never appealed to the Court of Appeal. The Petition cannot therefore suceed on that ground. The Petition is hereby dismissed.
5. I was as well called to relook at the sentence. A Sentence Review Report was availed. I have considered the contents of the Report and its recommendation. The Report pointed inter alia that the Petitioner was charged with others who were long released and are by now settled at their homes.
6. I have carefully addressed my mind to this matter. I am also of the view that the sentence of 7 years served by the Petitioner was sufficient to rehabilitate him. The Report confirmed that the Petitoner had been of good character at the prison and is remorseful.
7. I hereby review the sentence to the period already served. The Petitioner shall be set at liberty forthwith unless otherwise lawfully held.
8. It is so ordered.
DELIVERED, DATED and SIGNED at MIGORI this 30th day of October 2019
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of:
Mbigiri Josephat Gati the Petitioner in person.
Mr. Kimanthi, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.
Evelyne Nyauke –Court Assistant