[2019] KEHC 10673 (KLR)
The court declined to consider the application for sentence revision due to the absence of a Probation Officer's Post Sentence Review Report. The judge held that without this report, the court is unable to properly assess the applicant's circumstances and the appropriateness of the sentence. The court directed that...
Source-derived case information.
- Citation
- [2019] KEHC 10673 (KLR)
- Parties
- Applicant: Ndolo Kitingu Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 131 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- Application for sentence revision denied at this stage; order for preparation of Probation Officer's Post Sentence Review Report issued.
- Judges
- BC Koech
- Legal Topics
- Sentencing Principles, Revision of Sentence, Mitigation Factors, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndolo Kitingu Mutua
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the sentence imposed on the applicant should be revised in light of mitigation and circumstances presented.
- 2 Whether the absence of a Probation Officer's Post Sentence Review Report precludes consideration of the application for sentence revision.
Ratio Decidendi
The court declined to consider the application for sentence revision due to the absence of a Probation Officer's Post Sentence Review Report. The judge held that without this report, the court is unable to properly assess the applicant's circumstances and the appropriateness of the sentence. The court directed that the Probation Officer prepare and file the report, after which the applicant may renew his application for sentence revision. The court reaffirmed that sentencing discretion will not be interfered with unless there is a clear error in principle or the sentence is manifestly excessive, and found no such basis on the current record.
Court Disposition
Application for sentence revision denied at this stage; order for preparation of Probation Officer's Post Sentence Review Report issued.
Orders
- The request for sentence revision is denied at this juncture.
- The Probation Officer, Machakos County, is directed to prepare and file a Post Sentence Review Report.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
HC. CR. REV. NO. 131 OF 2018
NDOLO KITINGU MUTUA.........................APPLICANT
VERSUS
REPUBLIC.................................................RESPONDENT
(Being an appeal against the sentence dated 09. 05. 2017 in Criminal Case No. 287 of 2016 in Machakos Law Court before Hon. A. Lorot – SPM)
RULING OF THE COURT
1. The Applicant herein Ndolo Kitingu Mutuawas charged with the offence of stealing stock and an alternative count of handling stolen goods contrary to Section 278 and 322(2) of the Penal Coderespectively.
2. He pleaded not guilty to both counts before Hon. C. K Kisiangani, RM in Machakos Cr. Case No. 287/2016. He was convicted on the first count and sentenced to 7 years imprisonment, after mitigations being considered.
3. He has not challenged the conviction and initially challenged the sentence and later abandoned the appeal. He applied for revision of sentence stating that he is a first offender. He stated that he has been in custody for a long period in remand; that he is a first offender of good conduct and the sole breadwinner of his entire family.
4. The state has opposed the application vide submissions filed on 12th November, 2018. Learned Counsel for the Respondent and stated that the mitigations advanced do not warrant the interference with the discretion of the trial court. The state has submitted that the offence that the appellant was charged with carries a sentence of upto 14 years and thus the 7 years is lenient, safe and within the law. Counsel cited the case of Wanjema v R (1971) EA 493 and argued that the discretion of the trial court in sentencing will only be interfered with if the trial court overlooked some material factors, took into account some immaterial factors, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.
Analysis
5. I have considered the plea by the Applicant/Convict and noted that there is no Probation Officer’s Post Sentence Review Report. At this point in time I am unable to consider the request for lack of the said report.
Determination
6. In the premises, I deny the request at this juncture and make an Order directing the Probation Officer, Machakos County to prepare and file a Post Sentence Review Report, thereafter the Applicant is at liberty to move this honourable court for his application to be considered.
Dated, Signed and Delivered at Machakos this 29th day of January, 2019.
D.K. KEMEI
JUDGE