Edward O. Ng’ola v Republic [2017] KEHC 2866 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KAKAMEGA

HCRA NO. 49  OF 2015

EDWARD O. NG’OLA:::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

V E R S U S

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Arising from the Judgment of Hon. D. Ogal  criminal case No. 181  of 2015 at  Chief  Magistrate’s Court at  Kakamega )

J U D G  M E N T.

1. Edward O. Ng’olathe appellant was charged and convicted of the offence of escape from lawful custody contrary to section 123 as read with Section 36 of the penal Code. The particulars being that the appellant on 30th December, 2003 being at Kakamega G.K. Prison lawfully did escape from the said facility.

2. He had been held at the said prison over a criminal offence. Later on 30th September, 2014 he was arrested  on charges of house breaking vide Butere Principal Magistrate’s criminal case No. 360  of 2014 where he was convicted and sentenced to 3 years imprisonment.

3. When he was arraigned in court on 26th January, 2015 he pleaded not guilty to the charge of escape  from lawful custody. He however changed plea on 10th March, 2015 and the facts were read to him. He admitted them, was convicted and sentenced to one year imprisonment.

4. When this appeal came for hearing he presented the court with written submissions. He is basically seeking a reduction of the sentence. He explained that his long stay in Prison had taught him a lot. That he had also developed illnesses and wished to be released so that he could manage his affairs from home.

5. The State through Mr. Juma opposed the appeal saying the sentence was commensurate with the offence and it was not harsh.

6. I have considered the material before me. The appellant is not contesting his conviction. He has produced a document from Kakamega G.K.  Prison dispensary confirming that he is suffering from hypertension, arthritis   and peptic ulcer.

7. It has been confirmed to me by an officer from G.K. Main Prison Kakamega Mr. Mathews Omondi OkwesoP/No. 32259 that the appellant has no other pending prison term save for the current one he is serving for escape from lawful custody. The same term will be completed on 16th April , 2018  which  is 8 months to go.

8. The appellant has been in prison since September, 2014 and I am convinced he has learnt his lesson.

9. I allow the appeal on sentence which sentence I set aside. I substitute it with a sentence of the period already served.

10. The appellant shall be released forthwith unless lawfully held under a separate warrant.

Orders accordingly.

Delivered, signed and dated this  18th  day of August, 2017 at Kakamega.

H.I. ONG’UDI

JUDGE