[2014] KEHC 3961 (KLR)
The court held that, following the appellant's withdrawal of his appeal, there was no legal basis for reviewing or altering the sentence imposed by the trial court. The withdrawal of the appeal amounted to an election by the appellant to abide by the original sentence. The court further found that, despite the...
Source-derived case information.
- Citation
- [2014] KEHC 3961 (KLR)
- Parties
- Appellant: Ronald Kibitok; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Withdrawal of Appeal and Request for Sentence Review
- Outcome
- Appellant's request for early release or non-custodial sentence refused; appeal withdrawn.
- Legal Topics
- Withdrawal of Appeal, Sentence Review, Theft of Stock, Probation Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Kibitok
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Withdrawal of Appeal and Request for Sentence Review
Legal Issues
- 1 Whether the court can review the appellant's sentence after withdrawal of the appeal.
- 2 Whether a favourable probation report entitles the appellant to a non-custodial sentence after withdrawal of appeal.
- 3 Whether the appellant qualifies for early release or community service orders.
Ratio Decidendi
The court held that, following the appellant's withdrawal of his appeal, there was no legal basis for reviewing or altering the sentence imposed by the trial court. The withdrawal of the appeal amounted to an election by the appellant to abide by the original sentence. The court further found that, despite the favourable probation report, it had no jurisdiction to review the sentence in the absence of a pending appeal, as provided under Section 354 of the Criminal Procedure Code. The appellant had not served sufficient time to qualify for community service orders, and the original sentence was within statutory limits. Accordingly, the plea for early release or a non-custodial sentence was...
Court Disposition
Appellant's request for early release or non-custodial sentence refused; appeal withdrawn.
Orders
- The plea by the appellant for early release from prison custody is refused.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 31 OF 2013
RONALD KIBITOK:::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RULING
On 27th May, 2014, the appellant Ronald Kibitok withdrew his entire appeal. On that date, he had addressed the court (Ochieng, J.) as follows:-
“I have made a decision to withdraw my appeal. I have been
in jail since 2012. I am left with 3 more years. I ask this Court
to consider enabling me finish the balance of the sentence outside.”
The State had no objection for withdrawal of appeal. The Court then called for a probation report to consider the appellant's request for a non-custodial sentence. On 3rd July, 2014, the Probation Service filed a report. The report is favourable to the appellant.
The appellant had been convicted for theft of stock contrary to Section 278 of the Penal Code. He was sentenced to 7 years in prison on 24th May, 2012. The petition of appeal that was withdrawn was primarily against the sentence, it was titled “Mitigation of Appeal.”
Having withdrawn that appeal, there is no legal foundation for this court to review the sentence notwithstanding the favourable probation report. The appellant by withdrawing the appeal elected to abide by the sentence. The maximum sentence for the offence under Section 278 of the Penal Code is 14 years imprisonment. The appellant thus received half of the sentence. He has served only two years. He is not even within the threshold of the community services orders act. Probation was itself a punishment that the subordinate court could have given it didn't. In the absence of an appeal on sentence, I can not review the sentence under Section 354 of the Criminal Procedure Code.
Granted all those circumstances, the plea by the appellant for early release from prison custody is refused. It is so ordered.
G.K. KIMONDO
JUDGE
10th July, 2014
Ruling read at 2:30p.m, signed and dated in open court in the presence of:-
Mr. Ronald Kibitok - Appellant
Ms. Mwaniki -For the State
Mr. Weyama -Court Clerk