[2022] KEHC 14255 (KLR)
The trial magistrate erred in sentencing the applicant to one year in a borstal institution instead of the mandatory three years required by section 6(1) of the Borstal Institutions Act. The High Court, exercising its revisionary jurisdiction, found the sentence unlawful and directed that the file be returned to the...
Source-derived case information.
- Citation
- [2022] KEHC 14255 (KLR)
- Parties
- Respondent: Republic; Applicant: Maxwell Ochieng Otieno
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E052 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Resentencing
- Outcome
- Application allowed. File returned to trial magistrate for resentencing in accordance with section 6(1) of the Borstal Institutions Act.
- Judges
- RE Aburili
- Legal Topics
- Sentencing Error, Borstal Institution Committal, Juvenile Offender, Statutory Mandatory Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Maxwell Ochieng Otieno
Applicant
Procedural Posture
Criminal Revision / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was lawful under section 6(1) of the Borstal Institutions Act.
- 2 Whether the High Court has jurisdiction to rectify the sentencing error.
Ratio Decidendi
The trial magistrate erred in sentencing the applicant to one year in a borstal institution instead of the mandatory three years required by section 6(1) of the Borstal Institutions Act. The High Court, exercising its revisionary jurisdiction, found the sentence unlawful and directed that the file be returned to the trial magistrate for resentencing in accordance with the law. The committal warrant is to be amended to reflect the lawful sentence, ensuring compliance with the statutory minimum period for borstal committal.
Court Disposition
Application allowed. File returned to trial magistrate for resentencing in accordance with section 6(1) of the Borstal Institutions Act.
Orders
- The file is to be returned to the trial magistrate for resentencing of the offender in accordance with section 6(1) of the Borstal Institutions Act.
- The committal warrant dated September 19, 2022 shall be amended after resentencing to reflect the lawful sentence of three years.
Full Case Text
Judgment text and source record
23 paragraphs
Republic v Otieno (Criminal Revision E052 of 2022) [2022] KEHC 14255 (KLR) (14 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14255 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Revision E052 of 2022
RE Aburili, J
October 14, 2022
Between
Republic
Respondent
and
Maxwell Ochieng Otieno
Applicant
(Being an Application for resentencing arising from conviction and sentence in the CM’s court at Siaya in Criminal Case No. E245 of 2022 by Hon. M.O. Wambani, Chief Magistrate delivered on 19. 9.2022)
Ruling
1. I have perused the letter dated October 14, 2022from Shikusa Borstal Institution. I have also perused the trial court referral by the trial sentencing magistrate.
2. From the aforesaid letter, the trial court sentenced the offender/ subject to one year instead of the mandatory three years as provided for under section 6 of the Borstal Institutions Act.
3. Accordingly, I hereby direct that the file be returned to the trial magistrate for resentencing of the offender in accordance with section 6(1) of the Borstal Institutions Act which provide that:“Where the High Court or a subordinate court of the first class or a juvenile court is satisfied, after considering the matters specified in section 5 of this Act, that it is expedient for his reformation that a youthful offender should undergo training in a borstal institution, it may, instead of dealing with the offender in any other way, direct that the offender be sent to a borstal institution for a period of three years.”
4. In her sentencing made on September 19, 2022, the trial magistrate imposed on the subject one year committal to Shikusa Borstal Institution which was an error and which this court has jurisdiction to rectify.
5. Accordingly, the committal warrant dated September 19, 2022shall forthwith be amended after the resentencing to reflect the lawful sentence stipulated insection 6 (1) of the Borstal Institutions Act.
6. I so order.
7. This file is closed.
Dated, signed and delivered at Siaya this 14th Day of October, 2022R.E. ABURILIJUDGE