[2024] KEHC 4145 (KLR)
The court found that while the sentence imposed by the trial magistrate was lawful and within discretion, it was harsh and excessive given the applicant was a first offender and had expressed willingness to pay for the stolen items. The court held that the period spent in remand custody should be considered under...
Source-derived case information.
- Citation
- [2024] KEHC 4145 (KLR)
- Parties
- Applicant: Tobias Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 21 of 2024
- Procedural Posture
- Criminal Revision / Sentence Review Ruling
- Outcome
- Sentence of 5 years imprisonment substituted with a fine of Kshs. 60,000, in default 12 months imprisonment. Sentence to commence on 8.12.2023.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Stealing Motor Vehicle Parts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tobias Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Ruling
Legal Issues
- 1 Whether the period spent in remand custody should be considered in sentencing under section 333(2) of the Criminal Procedure Code.
- 2 Whether the sentence of 5 years imprisonment was harsh and excessive for a first offender convicted of stealing motor vehicle parts.
Ratio Decidendi
The court found that while the sentence imposed by the trial magistrate was lawful and within discretion, it was harsh and excessive given the applicant was a first offender and had expressed willingness to pay for the stolen items. The court held that the period spent in remand custody should be considered under section 333(2) of the Criminal Procedure Code. Consequently, the court substituted the custodial sentence with a fine, with a default custodial term, and ordered the sentence to commence from the date of first sentencing.
Court Disposition
Sentence of 5 years imprisonment substituted with a fine of Kshs. 60,000, in default 12 months imprisonment. Sentence to commence on 8.12.2023.
Orders
- The sentence of 5 years imprisonment is set aside.
- The applicant shall pay a fine of Kshs. 60,000, in default to serve 12 months imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
Otieno v Republic (Criminal Revision 21 of 2024) [2024] KEHC 4145 (KLR) (30 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4145 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 21 of 2024
DR Kavedza, J
April 30, 2024
Between
Tobias Otieno
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and after a full trial convicted for the offence of stealing of motor vehicle parts contrary to section 279(C) of the Penal Code Cap, 63 Laws of Kenya. He was sentenced to serve 5 years imprisonment. He has now filed an application seeking sentence review.
2. The application is premised on the grounds that the period spent in remand custody was not considered during sentencing. He urged the court to invoke section 333(2) and take into account the said period.
3. I have considered the application, the submissions by the applicant and the applicable law. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed.
4. In the present case, I find that the sentence meted out was lawful and within the discretion of the learned trial magistrate. Even so, it is my view that the same was harsh and excessive, considering that the applicant was a first offender and he was willing to pay for the stolen items.
5. Consequently, I hereby substitute the sentence of 5 years imprisonment meted by the trial court with a fine of Kshs. 60,000/=, in default to serve 12 months imprisonment. The sentence to commence on 8. 12. 2023. Orders accordingly.
RULING DATED AND DELIVERED THIS 30THDAY OF APRIL 2024D. KAVEDZAJUDGEIn presence of:N/A for the ApplicantMr. Mongare for the RespondentNelson C/A