[2016] KEHC 5811 (KLR)
The court found that the applicant was unfairly sentenced as a habitual offender based on unsubstantiated evidence, as the prior conviction referenced by the prosecution involved a different individual. The prosecution conceded that the applicant was wrongly branded a habitual offender, which significantly...
Source-derived case information.
- Citation
- [2016] KEHC 5811 (KLR)
- Parties
- Applicant: Selina Moraa Oreri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Revision Case 47 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; applicant released
- Judges
- WA Okwany
- Legal Topics
- Sentencing Revision, Habitual Offender Status, Alcoholic Drinks Control, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selina Moraa Oreri
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred in treating the applicant as a habitual offender based on unsubstantiated evidence.
- 2 Whether the sentence imposed was excessive and harsh in the circumstances without an option of a fine.
- 3 Whether the applicant was entitled to a revision of sentence under Section 362 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant was unfairly sentenced as a habitual offender based on unsubstantiated evidence, as the prior conviction referenced by the prosecution involved a different individual. The prosecution conceded that the applicant was wrongly branded a habitual offender, which significantly influenced the imposition of a custodial sentence without the option of a fine. Considering the applicant's age, health, and the period already served, the court exercised its revisionary powers under Section 362 of the Criminal Procedure Code to reduce the sentence to the period already served, ordering her immediate release unless otherwise lawfully held.
Court Disposition
sentence revised; applicant released
Orders
- The sentence is revised to the period already served.
- The applicant shall be set free forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
REVISION CRIMINAL APPLICATION NO. 47 OF 2016
IN THE MATTER OF THE CONSITUTION OF KENYA
AND
IN THE MATTER OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA
AND
IN THE MATTER OF TH ECRIMINAL CASE NO. 146 OF 2016 AT THE SRM’S COURT AT OGEMBO
AND
IN THE MATTER OF AN APPLICATION BY SELINA MORAA ORERI FOR REVISION OF THE SENTENCE
VERSUS
REPUBLIC………………………….………………………….RESPONDENT
RULING
The applicant herein SELINA MORAA ORERI was the accused at Senior Principal Magistrate’s Court at Ogembo in Criminal Case No. 146 of 2016. She was charged with selling alcoholic drinks without a licence contrary to Section 7 (1) (b) as read with Section 62 of the Alcoholic Drinks Control Act No. 4 of 2010. The particulars of the charge were that on 31st January 2016 at Kebere sub-location in Gucha Sub-County within Kisii County she was found selling alcoholic drink without a licence to wit with 8 litres of chang’aa
She pleaded guilty to the charge and was convicted to six months imprisonment without option of a fine after the prosecution led evidence that the accused was a habitual offender as she had on two previous convictions paid a fine of Kshs. 2,000/= and Kshs. 20,000/ respectively.
The applicant has now moved this court through her advocate Mr. Ondari seeking revision of the above sentence. She has also sworn an affidavit deponing that the criminal case that prosecution made reference to during the hearing i.e. Criminal Case no. 2443 of 2015 actually involved one Stella Moraa and not herself and that the accused in that case was infact fined Kshs. 100,000/= as opposed to Kshs. 20,000/= as stated by the prosecution. She has thus contended that the trial court mistakenly relied on unsubstantiated evidence to convict her and hence meting a sentence that was excessive, callous and extremely harsh in the circumstances without an option of a fine.
At the hearing of this matter Mr. Ondari for the applicant submitted that the language used by the lower court was not indicated and that the prosecution misled the court on the fact that the applicant was a habitual offender.
Mr. Otieno for the state did not object to the said revision as he conceded to the fact that the applicant was unfairly jailed as a habitual offender which weighed heavily on her 6 months sentence.
I have taken into account the fact that prosecution conceded to this application, the fact that the accused was unfairly branded as a habitual offender, the fact that the applicant appears elderly and sickly, and the period of almost two months served in prison I invoke my powers under Section 362 of the Criminal Procedure Code and revise/reduce the sentence to the period already served.
The applicant shall be set free forthwith unless she is otherwise lawfully held.
Delivered, dated and signed in at Kisii on 31st day of March, 2016.
W.A. OKWANY
JUDGE
In the presence of:
Mr. Otieno for the State
Obure for Ondari for the Accused
Omwoyo court clerk