Ochieng v Republic [2023] KEHC 25458 (KLR)

Ochieng v Republic (Criminal Revision 23 of 2023) [2023] KEHC 25458 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25458 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 23 of 2023

DR Kavedza, J

November 20, 2023

Between

Patrick Juma Ochieng

Applicant

and

Republic

Respondent

Ruling

1. The applicant was convicted and sentenced to five (5) years imprisonment for the offence of assault contrary to section 251 of the Penal Code.

2. The applicant has now filed an undated Notice of Motion application seeking revision of his sentence. He avers that he is remorseful and prays for a non-custodial sentence for the remaining part of his sentence.

3. The application is supported by an affidavit sworn by the applicant, Ezekiel Mukonambi, in which he reiterates the said grounds.

4. The application invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

5. This court can only intervene to regularize the record to avoid any miscarriage of justice. The reasons advanced by the applicant is that he is now reformed and should get the benefit of a non -custodial sentence. He has however not argued that the sentence passed was illegal nor improper. Neither has he suggested that the proceedings were irregular nor in violation of his right or fundamental freedom.

6. I note that the trial magistrate considered the circumstance of the offence and the mitigation by the applicant and subsequently sentenced him to five (5) years imprisonment. In my view, it is a lawful and very lenient sentence considering that the applicant was armed and used actual violence to inflict injuries upon the victim.

7. The grounds raised by the applicant are generalized and do not suffice interference with the discretion of the trial court in sentencing or warrant upsetting the sentence imposed by the lower court.

8. The upshot of the above is that there was no impropriety, illegality, irregularity nor misdirection on the part of the trial court and thus the application fails.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 20THDAY OF NOVEMBER 2023. .....................D.KAVEDZAJUDGEIn the presence of:Ms. Kibathi for the State.Applicant present (VTC).Ms. Joy/ Ms. Njuguna C/A.