[2018] KEHC 5294 (KLR)
The court found that the sentence imposed by the trial court was lawful and within the statutory range provided under Section 308(1) of the Penal Code. The applicant's personal circumstances, including his health and family situation, had already been considered during mitigation at trial and did not warrant further...
Source-derived case information.
- Citation
- [2018] KEHC 5294 (KLR)
- Parties
- Applicant: Moses Mutembei Mbaya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 14 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed; sentence upheld
- Judges
- BB Limo
- Legal Topics
- Sentencing, Revision of Sentence, Preparation to Commit Felony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Mutembei Mbaya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was irregular or excessive under Section 308(1) of the Penal Code.
- 2 Whether the applicant's personal circumstances justify interference with the sentence imposed by the trial court.
Ratio Decidendi
The court found that the sentence imposed by the trial court was lawful and within the statutory range provided under Section 308(1) of the Penal Code. The applicant's personal circumstances, including his health and family situation, had already been considered during mitigation at trial and did not warrant further interference. The court emphasized that the trial court exercised its discretion appropriately by imposing a lenient sentence of 4 years imprisonment with an option of a fine, which was below the minimum statutory sentence. There was no irregularity or illegality in the sentence, and the applicant would have the opportunity to reform while serving his sentence.
Court Disposition
application dismissed; sentence upheld
Orders
- The application for revision is disallowed.
- The sentence imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT CHUKA
CRIMINAL REVISION NO.14 OF 2017
(From original conviction and sentence in Criminal
CaseNo.705 of 2017of the Senior Resident
Magistrate's Court at Chuka)
MOSES MUTEMBEI MBAYA..............APPLICANT
VERSUS
REPUBLIC...........................................RESPONDENT
R U L I N G
The applicant herein Moses Mutembei was charged and convicted on his own plea with the offence of preparation to commit a felony contrary to Section 308 (1) of the Penal Code. He was sentenced to pay a fine of Kshs.30,000/- or serve imprisonment for 4 years. He has now moved this court under Section 362 of the Criminal Procedure Code for review of his sentence citing the following grounds namely:-
(i) That he is sole bread winner to his family.
(ii)That he is suffering from Tuberculosis (TB) and that the condition is difficult to manage in prison.
(iii) That his family is suffering as there is no one to pay school fees for his children as the wife is sickly.
(iv) That he prays for non-custodial sentence to enable him take care of his family.
2. This court pursuant to the provisions of Section 362 of the Criminal Procedure Code called for the lower court file and having gone through it, I am unable to find any irregularity on the sentence imposed because the sentence provided under Section 308(1) under which the applicant was charged prescribes a sentence of between 7 years and 14 years. In fact the applicant was lucky to be handed 4 years with an option of fine (ie Kshs.30,000/-). I also find that the issues he raised in this application were raised on mitigation during trial which I belief informed the trial court's decision to be very lenient to him. I find no reason to interfere with the discretion of the trial court in imposing a sentence it thought appropriate in the circumstances. I believe that the applicant will have an opportunity to reform because a prison being correctional facility will give the applicant humble opportunity to reform. In the premises the application is disallowed the sentence is upheld.
Dated and delivered at Chuka this 28th day of February, 2018.
R.K. LIMO
JUDGE
28/2/2018