[2020] KEHC 1359 (KLR)
The court found that, considering the applicant's status as a first offender, the value of the stolen items, the mitigation offered, and the lack of opposition from the prosecution, the original sentence of 3 years imprisonment on each count was excessive. Exercising its revisionary jurisdiction under section 354 of...
Source-derived case information.
- Citation
- [2020] KEHC 1359 (KLR)
- Parties
- Applicant: Phanuel Lubanga; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 58 of 2020
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised and reduced
- Legal Topics
- Theft Offences, Sentencing Revision, First Offender Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phanuel Lubanga
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence of 3 years imprisonment on each count for theft was excessive and should be revised.
- 2 Whether the applicant, as a first offender, should be granted a non-custodial or reduced sentence.
Ratio Decidendi
The court found that, considering the applicant's status as a first offender, the value of the stolen items, the mitigation offered, and the lack of opposition from the prosecution, the original sentence of 3 years imprisonment on each count was excessive. Exercising its revisionary jurisdiction under section 354 of the Criminal Procedure Code, the court determined that a reduction of the sentence to 2 years imprisonment on each count, to run concurrently, was appropriate and just in the circumstances.
Court Disposition
sentence revised and reduced
Orders
- The sentence of 3 years imprisonment on each count is revised and reduced to 2 years imprisonment on each count.
- The sentences shall run concurrently as previously ordered.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION CASE NO.58 OF 2020
PHANUEL LUBANGA...........................................................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS...................................................RESPONDENT
RULING
The applicant, PHANUEL LUBANGA filed his Notice of Motion herein on 2. 3.2020. It is brought under section 362 and 364 of the Criminal Procedure Code. The application basically seeks that the sentence imposed on him of 3 years imprisonment (on 2 counts) be revised and he be given a non-custodial sentence. The prosecution hasn’t opposed this application and left it for the court to decide.
Before the lower court, the applicant had been charged with theft of mobile phones, with a combined total value of about Kshs.180,000/=. On each count, he was sentenced to serve 3 year’s imprisonment. The sentences were ordered to run concurrently.
Under the penalty section of the offence of theft, section 275 of the Criminal Procedure Code,
“Any person who steals anything capable of being stolen is guilty of a felony termed theft, and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen same other punishment is provided, to imprisonment for 3 years.
The powers of the High court on revision, under section 354 of the Criminal Procedure Code (section 354 (1)(a)) include reversing the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction (354(3)(a)(i) and it extends to altering the finding, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence (ii). The court may also alter the sentence (iii).
In carrying out its mandate under the above section 354 of the Criminal Procedure Code, the court must take into account the circumstances of the case. In our instant case, the court has noted the value of the stolen items at a total of about Ksh.180,000/=. Also, the fact that the applicant is a first offender, the attitude of the complaints as contained in the pre-sentence report, and the general mitigation of the accused, lastly that the prosecution has not opposed this application for revision, basically on grounds that the sentence was excessive.
Considering the above circumstances, I concur with the prosecutions’ position that the sentences of 3 years meted out against the applicant are excessive. I therefore find that the application for revision of sentence filed herein by the applicant on 2. 3.2020 has merit.
I accordingly revise and reduce sentence meted out against the applicant from the terms of 3 years on each count to sentences of 2 years imprisonment on each count. The sentences shall run concurrently as earlier ordered.
HON. JUSTICE D. OGEMBO OGOLA
27th November 2020
Court:
Ruling read out in open court (on-line) in the presence of the applicant and Mr. Chebii for the state.
HON. JUSTICE D. OGEMBO OGOLA
27th November 2020