Fredrick Muthangua Maluki v Republic [2019] KEHC 611 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL REVISION CASE NO. 23 OF 2019

FREDRICK MUTHANGUA MALUKI...................APPLICANT

VERSUS

REPUBLIC............................................................RESPONDENT

R U L I N G

1. This file was placed before me following a letter written by D. M. Mutinda and Company Advocates.I have been asked to revise the sentence imposed by the trial Court on the grounds that the trial Court did not consider mitigating factors, it should have called for a Probation Officer’s Report as the Applicant was a first offender and the trial Magistrate should have exercised discretion and given an option of fine and that the custodial sentence was excessive.

2. It is important to note at the outset that this is the 2nd time this file is being placed before me for revision.  At the outset the trial Court presided over by Hon. Mungutiplaced the matter before me so that I could satisfy myself of the propriety of the order sentencing the offender to serve a term in jail when the parties had purportedly agreed after he failed to turn up for trial.  I rendered myself in my ruling dated the 22ndday of February, 2019and directed the offender to be committed to prison to serve the term commencing on the 22ndday of February, 2019.

3. My duty is therefore to satisfy myself of the legality of the sentence passed by the trial Court.  Section 251of the Penal Codeprovides thus:

“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”

4. The offender herein was charged with a misdemeanour, therefore, when he absconded the trial Court proceeded to determine the matter pursuant to Section 206of the Criminal Procedure Codeas pointed out in my earlier Ruling.  Therefore, the Court did not fall into error.

5. Having taken into consideration the conduct of the offender, the sentence meted out which was legal was not excessive.

6. In the premises, the Application lacks merit.  Accordingly, it is dismissed.

7. It is so ordered.

Dated, Signed and Deliveredat Kitui this 19thday of November,2019.

L. N. MUTENDE

JUDGE