[2022] KEHC 14805 (KLR)
The High Court found that the applicant's advanced age (93 years), poor health (having suffered a stroke), and status as a first offender constituted significant mitigating factors. The trial magistrate's conclusion that the applicant was not remorseful was not supported by the facts, as the applicant's statements...
Source-derived case information.
- Citation
- [2022] KEHC 14805 (KLR)
- Parties
- Applicant: Iluve Sila; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E173 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- sentence revised; applicant released
- Judges
- GMA Dulu
- Legal Topics
- Sentence Revision, Mitigating Factors, Non Custodial Sentence, Obtaining by False Pretence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iluve Sila
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the applicant's sentence should be revised in light of his age, health, and mitigating factors.
- 2 Whether the applicant's lack of remorse was properly considered by the trial court.
Ratio Decidendi
The High Court found that the applicant's advanced age (93 years), poor health (having suffered a stroke), and status as a first offender constituted significant mitigating factors. The trial magistrate's conclusion that the applicant was not remorseful was not supported by the facts, as the applicant's statements were consistent with the evidence and did not indicate a lack of remorse. Given these circumstances, the court exercised its discretion under section 362 of the Criminal Procedure Code to set aside the custodial sentence. The period already served in prison was deemed sufficient punishment, and the applicant was ordered to be released unless otherwise lawfully held.
Court Disposition
sentence revised; applicant released
Orders
- The sentence imposed by the trial court is set aside.
- The applicant shall be deemed to have served sufficient punishment for the period already served.
Full Case Text
Judgment text and source record
25 paragraphs
Sila v Republic (Criminal Revision E173 of 2022) [2022] KEHC 14805 (KLR) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14805 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Revision E173 of 2022
GMA Dulu, J
October 27, 2022
Between
Iluve Sila
Applicant
and
Republic
Respondent
Ruling
1. The applicant who has been convicted and sentenced to one (1) one year imprisonment for obtaining money by false pretence contrary to section 313 of thePenal Codehas come to this court through a Notice of Motion dated June 22, 2022 requesting for review of sentence.
2. In his application, the applicant has asked for review of sentence due to the prevailing mitigating factors, and feels that he should either be put on community service sentence, or other non-custodial sentence.
3. In his affidavit in support of the application, he states that he is a first offender, aged 93 years, and has suffered a stroke.
4. Learned Prosecuting Counsel Ms. Nyakibia does not oppose the revision of the sentence requested.
5. I have perused the proceedings, judgment and the factors taken into account by the magistrate in sentencing the applicant. I have also seen him in court, walking with a limp and he is certainly advanced in age.
6. I note that in sentencing him, the magistrate stated that the applicant was not remorseful because he said that he had sold the land but the buyer refused, and that he offered him alternative land but he again refused.
7. From the facts of the case however, in my view, that remark of the applicant did not mean that the applicant was not remorseful. He merely stated that he sold the land which belonged to his father, which agrees with the evidence tendered in court by the title owner Pw5 Jonathan Musila Nzioka, that the applicant who is a son of the original owner, was not present when Pw5 was sold the land by the owner who was father of the applicant.
8. In the circumstances of this case, and especially the age and health condition of the applicant, in my view, it is fair and proper for this court to exercise its discretion under section 362 of the Criminal Procedure Code (cap.75) to review the sentence imposed.
9. Since the applicant was sentenced in June 2022, more than four (4) months now, I will not put him on Community Service Order, but deem the prison sentence he has already served to date to be adequate punishment.
10. I thus set aside the sentence imposed by the trial court, and instead order that the applicant serves the prison sentence he has served todate. He will thus be discharged from prison forthwith unless otherwise lawfully held.
DELIVERED, SIGNED & DATED THIS 27TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.........................................GEORGE DULUJUDGE