[2024] KEHC 10262 (KLR)
The High Court held that it cannot review or alter a lawful sentence imposed by the trial court unless there is a formal appeal challenging the sentence. The trial court had already considered the applicant's mitigation and the presentence report, which indicated the applicant was a habitual offender and unsuitable...
Source-derived case information.
- Citation
- [2024] KEHC 10262 (KLR)
- Parties
- Applicant: Alphonse Ochieng Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E083 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Probation After Conviction and Sentence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentencing Review, Probation Application, Burglary and Stealing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alphonse Ochieng Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Probation After Conviction and Sentence
Legal Issues
- 1 Whether the High Court can review or alter a lawful sentence imposed by the trial court in the absence of an appeal challenging the sentence.
- 2 Whether the applicant should be placed on probation despite the findings of the presentence and probation reports.
Ratio Decidendi
The High Court held that it cannot review or alter a lawful sentence imposed by the trial court unless there is a formal appeal challenging the sentence. The trial court had already considered the applicant's mitigation and the presentence report, which indicated the applicant was a habitual offender and unsuitable for probation. The application for probation was therefore without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 6th May, 2024 is dismissed.
- This file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E083 of 2024) [2024] KEHC 10262 (KLR) (19 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10262 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E083 of 2024
RE Aburili, J
August 19, 2024
Between
Alphonse Ochieng Otieno
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Kisumu Criminal Case No.E121 of 2023 on 25th September, 2023 by Hon. Dr. D.N.Ogoti, C.M.)
Ruling
1. The applicant was convicted of the offence of burglary and stealing contrary to Section 304 (b) as read with section 278 of the Penal Code and sentenced to serve Four years imprisonment on each limb, sentences to run consecutively.
2. He now seeks to be placed on probation. I observe that before sentencing, the trial court called for a presentence report which was filed. The convict was also given the opportunity to mitigate. The probation report revealed that he was a habitual thief and that he had been charged at Winam law Courts for handling stolen property. That he belongs to a gang that terrorizes citizens.
3. The trial court having considered the mitigations and presentencing report, exercised discretion and this court cannot review lawful sentence in the absence of any appeal challenging the sentence.
4. I find the application dated 6th May, 2024 devoid of any merit. It is hereby dismissed.
5. Signal to issue.
6. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF AUGUST, 2024R.E. ABURILIJUDGE