[2016] KEHC 7651 (KLR)
The court found that although the sentence imposed was legal, the applicant's status as a first offender, the fact that he had already spent 7 months in remand, and the inevitability of his repatriation justified setting aside the custodial sentence. The court exercised its discretion to substitute the sentence with...
Source-derived case information.
- Citation
- [2016] KEHC 7651 (KLR)
- Parties
- Applicant: Rasima Alamu Alamayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 69 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- sentence set aside; applicant released and ordered to be repatriated
- Legal Topics
- Sentencing Review, False Document Offences, Immigration Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rasima Alamu Alamayo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was excessive and should be reviewed to a non-custodial sentence.
- 2 Whether the applicant's status as a first offender and time spent in remand warranted a reduction or alteration of the sentence.
Ratio Decidendi
The court found that although the sentence imposed was legal, the applicant's status as a first offender, the fact that he had already spent 7 months in remand, and the inevitability of his repatriation justified setting aside the custodial sentence. The court exercised its discretion to substitute the sentence with an order for immediate release and repatriation, holding that the applicant had served sufficient punishment under the circumstances.
Court Disposition
sentence set aside; applicant released and ordered to be repatriated
Orders
- The sentence imposed by the lower court is set aside.
- The applicant is forthwith set free.
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. 69 OF 2016
RASIMA ALAMU ALAMAYO……………..…………………..APPLICANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
RULING
The applicant herein was charged in the Chief Magistrate’s Court at Milimani in Criminal Case No. 765 of 2014 with the offence of making a false document contrary to Section 347(f) as read with Section 349 of the Penal Code. In Count II, he was charged with uttering a false document contrary to Section 353 of the Penal Code. In Count III he was charged with being unlawfully present in Kenya contrary to Section 53(1)(j) as read with section 53(2) of the Kenya Citizenship and Immigration Act of 2011. He was tried, found guilty and convicted accordingly. He was sentenced to pay a fine of Kshs. 100,000/= in each of the counts in default serve 6 months imprisonment respectively. The sentences were to run consecutively. The sentence was passed on 23rd January, 2015.
Pursuant to Section 362 of the Criminal Procedure Code, the lower Court record has been forwarded to this court with a view to the court satisfying itself as to the correctness, legality or propriety of the sentence passed. By a Chamber Summon application filed on 17th February, 2016, the applicant prays that the sentence be reviewed to a non custodial one. In his Supporting Affidavit sworn on 8th February, 2016, he alludes that he cannot pay the excessive fine imposed and was remorseful as he was arrested as he tried his luck to go to South Africa for greener pastures to enable him support his family which comprises two children and a wife.
I have accordingly considered the application. The sentence passed was legal but taking into account that the applicant was a first offender, and had been in remand for 7 months prior to the sentencing, and will in any event be repatriated, it is my view that he has served sufficient sentence.
In the result, I set aside the sentence and substitute it with an order that the applicant be and is hereby forthwith set free. He shall be repatriated to his home country Ethiopia.
DATED and DELIVERED this 26thday of April, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
The Applicant in person.
M/s Akuja for the Respondent.