[2018] KEHC 2267 (KLR)
The court found that since the appellant had served nearly the entire custodial sentence, with only about 1½ months remaining, and both the appellant and prosecution consented to the withdrawal of the appeal and substitution of the sentence, it was appropriate to allow the withdrawal and set aside the remainder of...
Source-derived case information.
- Citation
- [2018] KEHC 2267 (KLR)
- Parties
- Appellant: Stephen Ouma Ngwowa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2017
- Procedural Posture
- Criminal Appeal / Judgment on Withdrawal of Appeal and Sentence Review
- Outcome
- Appeal marked as withdrawn; remainder of custodial sentence set aside and substituted with a non-custodial suspended sentence.
- Judges
- RE Aburili
- Legal Topics
- Breaking and Entering, Sentencing, Appeal Withdrawal, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Ouma Ngwowa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Withdrawal of Appeal and Sentence Review
Legal Issues
- 1 Whether the appeal against conviction and sentence should be allowed to be withdrawn.
- 2 Whether the remainder of the custodial sentence should be substituted with a non-custodial suspended sentence.
Ratio Decidendi
The court found that since the appellant had served nearly the entire custodial sentence, with only about 1½ months remaining, and both the appellant and prosecution consented to the withdrawal of the appeal and substitution of the sentence, it was appropriate to allow the withdrawal and set aside the remainder of the custodial sentence. In the interest of prison decongestion and rehabilitation, the court exercised its discretion to substitute the remaining custodial sentence with a non-custodial suspended sentence, on condition that the appellant does not commit any further offence during the suspended period.
Court Disposition
Appeal marked as withdrawn; remainder of custodial sentence set aside and substituted with a non-custodial suspended sentence.
Orders
- The appeal is marked as withdrawn.
- The remainder of the custodial sentence is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
(COMMITTING A FELONY)
CRIMINAL APPEAL NO. 84 OF 2017
(CORAM: R. E. ABURILI – J.)
STEPHEN OUMA NGWOWA.............PETITIONER
VERSUS
REPUBLIC .........................................RESPONDENT
(Being an appeal against both the conviction and the sentence DATED 26. 1.2017 in Criminal Case No. 171 of 2016 in Principal Magistrates Court Siaya LawCourt before Hon T. M. Olando – S.R.M.)
JUDGMENT OF THE COURT
The Appellant herein Stephen Ouma Ngwowa was convicted of the offence of Breaking into a building and committing a felony contrary to Section 306 (a) of the Penal Code.
He pleaded not guilty and a trial proceeded in earnest. He was found guilty and sentenced to serve 2 years in prison. On 31. 8.2012. He has now served nearly all the sentence with a remainder of 1 ½ months only inclusive of 1/3 period of remission. He does not wish to proceed with the appeal but prays for non-custodial sentence. The Prosecution is not opposed to the withdrawal of the appeal and is in favour of non-custodial sentence.
The Appellant says he is ready to live as a law abiding citizen of this County. I have considered the Application for withdrawal of the appeal. The same is merited and accordingly the appeal herein is hereby marked as withdrawn.
As the Appellant has nearly served the sentence of the 2 year prison sentence which is short and is remaining with about 1 ½ months thereof, in the spirit of prison decongestion, I hereby exercise my discretion and set aside the remainder of the prison sentence and substitute it with suspended sentence of the remainder of the sentence. The Appellant/Convict shall not commit any offence during the said period otherwise he shall be re-arrested and sent back to prison to serve the said suspended sentence.
Accordingly, the convict Stephen Ouma Ngwowa is hereby set at liberty to serve a non-custodial suspended sentence for the remainder period with immediate effect, unless otherwise lawfully held.
Orders accordingly.
Dated, Signed and Delivered at Siaya this 20th day of November, 2018.
R. E. ABURILI
JUDGE