Kirima v Republic (Criminal Revision E165 of 2022)  KEHC 2484 (KLR) (24 March 2023) (Ruling)
Neutral citation:  KEHC 2484 (KLR)
Republic of Kenya
Criminal Revision E165 of 2022
GL Nzioka, J
March 24, 2023
Joel Macharia Kirima
1.The applicant was arraigned before the Senior Principal Magistrate’s Court at Engineer charged vide Criminal Case No E1166 of 2022, in two counts with the offences of stealing contrary to section 268 as read with section 275 of the Penal Code. The particulars of each charge are as per the charge sheet.
2.He pleaded guilty and was convicted on his own plea of guilty, and sentenced to serve a term of three (3) years on the 1st count as indicated on the court record although the committal warrant reads two (2) years and two (2) years imprisonment on the second count. The sentences were ordered to run consecutively.
3.However, vide an application filed on October 6, 2022, the applicant seeks the sentence be reviewed to a non-custodial one or to run concurrently.
4.The Respondent did not respond to the application despite being granted an opportunity to do so as such the application is unopposed.
5.The application is considered in the light of the material before the court, in particular the mitigation in the affidavit in support thereof wherein the applicant avers that he pleaded guilty and is a first offender. That he is remorseful, has learnt to be a law abiding citizen and promises never to engage in criminal activities.
6.That he is from a poor family and has a harmonious relationship with his neighbours. Further, that he has no pending appeal and is only applying for review of sentence and prays that the court is merciful and reduces his sentence.
7.Similarly, the pre-sentence review report dated; March 3, 2023, indicates that he is 22 years old and 2nd born out of a family of; four (4) siblings. He is married with one child aged two (2) years old. That he dropped out of school in class 7 due to financial constraints and was engaged in small scale farming for a living before his arrest.
8.That he accepts his mistake and is remorseful having learnt a lot in prison. That his family members have a positive attitude towards him and states that he is hardworking and has strong family ties with no prior misconduct. He is assigned to work in the Prison’s farm and has learnt to make ornaments at the Prison’s industry. Further he has good conduct and relates well with other inmates and prison officials. The Probation officer recommends that he is suitable for favourable review of his sentence.
9.To revert back, the offences the applicant is convicted of are provided for under section 268 as read with section 275 of the Penal Code. Section 268 (1) that provides that: -
10.On the other part section 275 states that: -
11.It suffices to note that, revisionary power of the High Court is provided for under sections 362 of the Criminal Procedure Code which states as follows:
12.However, the section should be read together with section 364 of the Code which provision states as follow: -
13.Pursuant to the above provisions, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. Indeed, the objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be invoked where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
14.The sentences meted herein were lawful, however, taking into account that the applicant pleaded guilty and saved court’s time and is a first offender the sentences meted are harsh. The objective of sentence is both rehabilitative and deterrence and first offenders should not be subjected to the harshest sentence at the first instant.
15.In the given circumstances I set aside the sentences on both counts and sentence the applicant to fifteen (15) months imprisonment on each count and order the sentences runs concurrently.
16.It is so ordered
DATED, DELIVERED AND SIGNED ON THIS 24TH DAY OF MARCH 2023GRACE L NZIOKAJUDGEIn the presence of:Appellant present in person, in court virtuallyMr Atika for the RespondentMs Ogutu: Court Assistant