[2011] KEHC 2594 (KLR)
The trial court imposed a sentence of one year imprisonment for the offence of creating a disturbance likely to cause a breach of the peace, contrary to Section 95(1)(b) of the Penal Code. The law prescribes a maximum sentence of six months for this offence. The High Court, exercising its revisionary jurisdiction...
Source-derived case information.
- Citation
- [2011] KEHC 2594 (KLR)
- Parties
- Applicant: Wilson Wanderi Migwi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 2 of 2011
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence varied on revision
- Judges
- JK Sergon
- Legal Topics
- Sentencing Illegality, Revisionary Jurisdiction, Breach of Peace, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Wanderi Migwi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory maximum for the offence charged.
- 2 Whether the High Court should exercise its revisionary jurisdiction to correct the sentence.
Ratio Decidendi
The trial court imposed a sentence of one year imprisonment for the offence of creating a disturbance likely to cause a breach of the peace, contrary to Section 95(1)(b) of the Penal Code. The law prescribes a maximum sentence of six months for this offence. The High Court, exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, found the sentence to be illegal. The court set aside the illegal sentence and substituted it with a lawful sentence of four months imprisonment, to run from the date of the original sentence. The court considered the applicant's status as a first offender and the circumstances of the offence but determined that custodial...
Court Disposition
sentence varied on revision
Orders
- The sentence of 1 year imprisonment is set aside.
- The applicant is sentenced to 4 months imprisonment from the date of the original sentence.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CONSTITUTIONAL REFERENCE NO. 2 OF 2011
WILSON WANDERI MIGWI………………………………………….APPLICANT
VERSUS
REPUBLIC…….……………………………………...………………..RESPONDENT
RULING ON REVISION
WILSON WANDERI MIGWI, hereinafter referred to as the applicant, was convicted on his own plea of guilty for the offence of creating a disturbance in a manner likely to cause a breach of the peace contrary toSection 95 (1) (b) of the Penal code. It is stated that on 12th February 2011 at Huhoini area the Applicant created a disturbance likely to create a breach of the peace by threatening to hit Rahab Nyakaria with a fork jembe and referred to her as stupid. The applicant was then sentenced to serve 1 year imprisonment. The file was thereafter placed before this court for perusal under Section 362 of the Criminal Procedure Code.
In exercise of this court’s revisionary jurisdiction, I perused the proceedings of the convicting court. The court exercises the revisionary jurisdiction underSection 362 of the Criminal Procedure Code in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. I have perused the proceedings before the trial court and it is very clear that the Applicant herein was sentenced to serve 1 year imprisonment on a conviction for the offence under Section 95 (1) (b) of the Penal Code. Under the aforesaid Section, the law prescribes a maximum sentence of six (6) months imprisonment. It is therefore obvious that the sentence meted out by the trial court was illegal. Such a decision can be revised by this court in exercise of its powers of revision. The record shows that the Applicant was treated as a first offender. He pleaded for leniency. There is also an allegation that he committed the offence under the influence of alcohol. The offence was that committed by the Applicant against his mother. The facts outlined by the court prosecutor were to the effect that the Applicant had arrived at his mother’s home at about 10. 00 p.m. He demanded to be given food but none was available. He started abusing his mother by calling her stupid. The mother screamed and sought for help from the members of the public who came, overpowered the applicant and took him t the police station. Though the applicant was a first offender, he will not attract the sympathy of the court. Such a person should be kept in custody for a while to enable him reform and reflect on his unlawful actions he visited on a parent. The sentence of 1 year imprisonment is set aside. Pursuant to the provisions of Section 364 (1) (a) as read with Section 354 (3) (a) (iii) I substitute the sentence of 1 year to that of 4 months imprisonment. The aforesaid term to run from the date of sentence.
Dated and delivered at Nyeri this 17th day of June 2011.
J. K. SERGON
JUDGE
Makura:The appellant was released on presidential amnesty.