[2018] KEHC 6238 (KLR)
The court found that the order made on 21.5.2018, which released the applicant to serve a further 3 months under Community Service Order, was made per incuriam because it failed to consider that the applicant's original 9-month sentence was due to expire on 30.5.2018. Imposing an additional 3 months under CSO would...
Source-derived case information.
- Citation
- [2018] KEHC 6238 (KLR)
- Parties
- Applicant: Samuel Juma Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 126 of 2018
- Procedural Posture
- Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- Application for review allowed; previous order set aside; applicant to be released forthwith.
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Community Service Order, Parole Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Juma Makokha
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicant is entitled to parole or review of the sentence in light of time already served.
- 2 Whether the order for release to serve a Community Service Order (CSO) was made without proper consideration of the sentence duration.
Ratio Decidendi
The court found that the order made on 21.5.2018, which released the applicant to serve a further 3 months under Community Service Order, was made per incuriam because it failed to consider that the applicant's original 9-month sentence was due to expire on 30.5.2018. Imposing an additional 3 months under CSO would have resulted in the applicant serving a sentence longer than that imposed by the trial court, which is unlawful. The court therefore reviewed and set aside the previous order and directed the applicant's immediate release unless otherwise lawfully held.
Court Disposition
Application for review allowed; previous order set aside; applicant to be released forthwith.
Orders
- The order of 21.5.2018 releasing the applicant to serve a Community Service Order is reviewed and set aside.
- The applicant shall be released from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
(GRIEVOUS HARM)
H.C. CRIMINAL APPLICATION NO. 126 OF 2018
SAMUEL JUMA MAKOKHA..................APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
(Being an appeal against both the conviction and the sentence dated 30. 11. 2017 in Criminal Case No.334 of 2017 in Ukwala Senior Resident Magistrate’s Court before Hon. G. Adhiambo – SRM)
RULING:
1. I have considered the Application by the Applicant dated 23. 5.2018 seeking for parole in view of the fact that he has served nearly 2/3 of his 9 months imprisonment. In the Application, the Applicant seeks for review of the Revision Order made on 21. 5.2018 by Hon. Majanja – J. releasing him to complete his sentence under Community Service Order of 3 months.
2. Having perused the file, I note that the Hon. Judge did not take into account the length of sentence meted out on the convict and when it was likely to be fully served.
3. It has now occurred that the term of imprisonment is due on 30. 5.2018 and therefore it would be illegal for the convict to serve an extended sentence of 3 months under Community Service Order.
4. For reasons that the order made on 21. 5.2018 for release of the convict to serve CSO was made per incuriam, I hereby review the said order of 21. 5.2018 and set it aside and substitute it with an order that the convict shall forthwith be released from prison unless otherwise lawfully held. He is accordingly discharged.
Dated, Signed and Delivered at Siaya this 23rd day of May 2018.
R. E. ABURILI
JUDGE