[2022] KEHC 16263 (KLR)

Mogaka v Republic (Criminal Revision E070 of 2022) [2022] KEHC 16263 (KLR) (Crim) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16263 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E070 of 2022

JM Bwonwong'a, J

December 15, 2022

Between

Jackson Mogere Mogaka

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence of 3 years imprisonment imposed by Hon. J. Kibosia, P.M, on 3rd March 2022 in Makadara Chief Magistrates Court in Criminal Case No. 3 of 2022 Republic vs Jackson Mogere Mogaka)

Ruling

1. The applicant was charged and convicted on his own plea of guilty for the offence of assault causing actual bodily hard contrary to section 251 of the Penal Code((cap 63), laws of Kenya.

2. He was sentenced to serve 3 years imprisonment.

3. He has now approached this court seeking a review of this sentence.

4. The grounds raised in his application and the supporting affidavit are as follows. That he is a first offender; he is the sole breadwinner of his wife and school going child; he is remorseful. Since his incarceration, he has reformed and will never engage in criminal activities again. He urges the court to review his sentence and consider a non-custodial sentence.

5. During the hearing of his application, he made oral submissions. He urged the court to consider a non-custodial sentence to enable him to cater for and provide for his family. Further, he religiously attended court during his trial.

6. In opposition to the application, Ms Joy learned prosecution counsel submitted that the applicant is not raising any question of correctness or irregularity of the sentence of 3 years imposed. She submitted that applicant was properly convicted and given a lenient sentence by the trial court.

Issues for Determination. 7. I have considered the application, the oral submissions and the applicable law. As a result, I find that the issue for determination is whether the applicant has made out a case for the grant of the orders sought.

Analysis and Determination 8. The instant application is premised on section 362 as read with section 364 of the Criminal Procedure Code. Section 362 gives the High Court the jurisdiction to call for and examine the record of any criminal proceeding before any subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. Section 364 on the other hand provides for the powers of the High Court on revision.

9. The application is founded on the grounds that the applicant has since reformed and he is the sole breadwinner of his family. He now seeks a non-custodial sentence. It is clear from his sentencing notes that the trial court considered the pre-sentencing report of the probation officer and the applicant’s mitigation. She then proceeded to sentence him to 3 years imprisonment.

10. The other grounds raised are that he is the sole breadwinner of his family and calls for a non-custodial sentence as he has reformed. In respect of the discretion of the trial court the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR stated that:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

11. I find that the trial court did not take into account that the applicant pleaded guilty. I find that this is an error of law that entitles this court to interfere with the sentencing discretion of the trial court. Consequently, I reduce the sentence of three years to one year and six months

12. The upshot of the above analysis is that the application for revision of the sentence succeeds as shown above.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe appellant in personMs Akunja for the respondent