[2016] KEHC 8066 (KLR)
The court found that the trial magistrate failed to give the applicant an opportunity to mitigate before sentencing, which is a critical component of a fair trial. Although the sentence of two years was within the statutory limit, the failure to consider mitigation may have resulted in a harsher sentence than...
Source-derived case information.
- Citation
- [2016] KEHC 8066 (KLR)
- Parties
- Applicant: Phillip Munene Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 110 of 2016
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Legal Topics
- Sentencing Principles, Mitigation, Fair Trial Rights, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillip Munene Mwangi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant was denied an opportunity to mitigate before sentencing, thus violating fair trial requirements.
- 2 Whether the sentence imposed was harsh and excessive in the circumstances.
Ratio Decidendi
The court found that the trial magistrate failed to give the applicant an opportunity to mitigate before sentencing, which is a critical component of a fair trial. Although the sentence of two years was within the statutory limit, the failure to consider mitigation may have resulted in a harsher sentence than warranted. Considering the applicant had already served one year and eight months, and the amount involved was not so large as to justify a two-year jail term, the court held that the period already served constituted sufficient punishment. The original sentence was set aside and substituted with an order for immediate release unless otherwise lawfully held.
Court Disposition
application allowed
Orders
- The 2-year jail term is set aside.
- The applicant is deemed to have served sufficient punishment and is to be set free forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.110 OF 2016
PHILLIP MUNENE MWANGI……………..………………..APPLICANT
VERSUS
REPUBLIC………………………………...……………..RESPONDENT
RULING
The Applicant was charged with stealing contrary to Section 268 as read with Section 275 of the Penal Code. The particulars of the offence were that on the 16th of January 2013 at Jomo Kenyatta international Airport within Nairobi County stole US Dollars 10000 and Kshs. 84,000/= totaling to 915,000 /= the properly to Sadeq Abdulbari Ali Ali. He was convicted and sentenced to serve 2 years imprisonment on 13th January, 2015.
The Applicant has come to this court for the revision of sentence under Section 362 of the Criminal Procedure Code. He filed a Chamber Summons application on 13th April, 2016. He pleads that he is a first offender, was misled by his workmates to comment the offence, that he has a family for which he is the sole breadwinner, that he has learnt the mistakes of committing an offence and that the sentence was harsh and excessive in the circumstances.
Under Section 275 of the Penal Code, he was liable to imprisonment for 3 years. In that regard the sentence imposed was lawful. A look at the record however shows that the trial magistrate failed to give him an opportunity to mitigate. Mitigation constitutes a part of the requirement for a fair trial. Although it does not vitiate a conviction it is a requirement that persuades the trial court to consider factors that may mitigate a lenient penalty. In the instant case, the learned trial magistrate upon conviction, went ahead and sentenced the Applicant without giving him an opportunity to mitigate. In that case, and in my view, he may have handed a harsh sentence. I say so because taking into account the amount of money that was involved, was not such a large amount as to warrant a 2 years jail term. Having been sentenced on 13th January, 2015 the Applicant has already served 1 year and 8 months jail term. That period in my view is sufficient punishment.
In the end, the application succeeds. I set aside the 2 years jail term and substitute with an order that the Applicant has served sufficient punishment and is hereby forthwith set free unless otherwise lawfully held. It is so ordered.
DATED and DELIVERED this 26th day of September, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Applicant in person
2. M/s Sigei for the Respondent