Collins Odhiambo Asuka v Republic [2017] KEHC 9734 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO. 77 OF 2016

COLLINS ODHIAMBO ASUKA..…APPLICANT

VERSUS

REPUBLIC …….………………….RESPONDENT

RULING

In this application, the Applicant prays that the period he spent in custody be considered as constituting part of his sentence.  He was convicted for the offence of stealing from a person and upon conviction was sentenced to serve five years imprisonment.

I have seen the original record of proceedings.  It is clear that the learned trial magistrate took into account the period the Appellant was in custody before he was sentenced.  However, the particulars of the charge sheet do show that he only stole cash Kshs. 1,000/=. He was also a first offender. Thus, it is my opinion that the sentence passed was harsh and excessive in the circumstances, taking into account that he was in custody for a period of one year seven months and 10 days prior to sentence.  In addition, he has served sentence for a period of two years and about five months.  Cumulatively, he has been in custody for about four years.  This is sufficient punishment that is commensurate with the offence.

I accordingly set aside the remainder of the sentence.  I substitute it with an order that the Applicant has served sufficient sentence.  I order that he be forthwith set free unless otherwise lawfully held.

Dated and Delivered at Nairobi this 30th day of November, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Applicant present in person

2. M/s Sigei for the Respondent.