[2023] KEHC 25574 (KLR)

Mwigai v Republic (Criminal Revision 009 of 2023) [2023] KEHC 25574 (KLR) (Crim) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25574 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 009 of 2023

DR Kavedza, J

November 21, 2023

Between

Francis Migwi Mwigai

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence delivered on 22nd August 2022 by Hon E. Riany SPM at Kibera Magistrate’s Court Criminal Case No. E1276 of 2022 Republic vs Francis Migwi Muigai)

Ruling

1. The applicant was charged with the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code. He was convicted on his own plea of guilty and sentenced to serve three (3) years imprisonment.

2. The applicant has now filed a Notice of Motion application seeking revision of his sentence. He avers that he is remorseful and prays for a non-custodial sentence for the remaining term. The applicant urges that he is a first offender and therefore, deserves a lenient sentence. The application is supported by an Affidavit sworn by the applicant, Francis Migwi Muigai, in which he reiterates the said grounds.

3. Revisionary jurisdiction of the High Court stems from the broader supervisory jurisdiction of the High Court conferred under article 165(6) of the Constitution, thus:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

4. And, under article 165(7) of the Constitution: -(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

5. Notably, the appellant was convicted on his own plea of guilt. He has not challenged the plea as being unequivocal. Thus, he is only entitled to appeal on or seek revision of the extent or legality of sentence. See section 348 of the Criminal Procedure Code below: -348. No appeal on plea of guilty, nor in petty casesNo appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

6. On the merits of the application, the applicant seeks a revision of the trial court’s sentence. The argument raised is that the sentence imposed is too harsh considering that the applicant was convicted on his own plea of guilty for the offence under section 308 of the Penal Code, which prescribes a sentence of five (5) years imprisonment. The trial court however sentenced the applicant to three (3) years imprisonment. From the record, it is evident that the applicant was not sentenced to the maximum term.

7. I however take notice that the applicant pleaded guilty and saved the court's time. The prosecutor did not have to avail evidence and neither did the magistrate have to write a judgement. He was therefore entitled to a more lenient sentence. This would encourage offenders facing similar charges to plead guilty or plea bargain with the state for lesser sentences. He was also a first offender.

8. In the circumstances, I find that the sentence imposed to be excessive. The sentence of three (3) years imprisonment is therefore reduced to the period served. Consequently, the applicant shall be released from prison forthwith unless otherwise lawfully held.

9. Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 21ST DAY OF NOVEMBER 2023. __________________D. KAVEDZAJUDGEIn the presence of:Ms. Kibathi for the state.Applicant absent (VTC)Ms. Njuguna/ Ms. Joy C/A