James Gitonga Mbaka v Republic [2018] KEHC 3071 (KLR)

0REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CRIMINAL REVISION NO. 128  OF 2018

JAMES  GITONGA MBAKA............APPLICANT

VERSUS

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

(Intended Appeal from Conviction and sentence of the Chief Magistrate's Court in Criminal Case No. 1042 of 2017 at Chuka delivered by HON. NJOKI KAHARA (RM)  on10/5/2018).

R U L I N G

1. JAMES GITONGA MBAKA, the applicant herein was charged and convicted  for the offence store  breaking and committing a felony  contrary to Section 306(a) of the Penal Code.  He was also convicted of 2nd count of  neglecting to prevent a felony contrary to Section 392 as read with Section 36 of the Penal Code.  He was sentenced to serve 3 years in the first count and 1 year in the 2nd count with both sentence running concurrently.

2. The applicant has now moved this court pursuant to Section 362 and 364 of the Criminal Procedure Code for revision of his sentence asking for leniency on the ground that he has two children who are being taken care of by his grandmother and that his wife is jobless and unable to provide for them in his absence.

3.  This court has perused the lower court file and noted that though the sentence provided by law is upto 7 years in the first count, this court notes that the probation report dated 22nd October, 2018 and filed in this court the same day is positive about the applicant.  He is a first offender and in view of the policy to decongest prison by giving a chance to reformed convicts to serve their sentences outside custody, I am inclined to allow the application for revision.  The sentence passed against the appellant is varied and will    now serve the remainder of his term on probation. He will be reporting to the  probation officer periodically as directed by the probation officer until he   finishes his term of 3 years.  In default of this condition, the applicant will be re-arrested and taken back to jail to finish the remaining term of his sentence. The applicant should strictly abide by terms given by the probation       officer.

Dated, signed and delivered at Chuka this 24th day of October, 2018.

R.K. LIMO

JUDGE

24/10/2018

Ruling signed, dated and delivered in the presence of applicant in person and Machirah for state/Respondent.

R.K. LIMO

JUDGE

24/10/2018