[2012] KEHC 5786 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT MOMBASA

Criminal Appeal 471 of 2010

ABDI HASSAN.................................................................................................APPLICANT

V E R S U S

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

(From original conviction and sentence in Criminal Case No. 920 of 2009 of the Senior Resident Magistrate’s Court at Voi)

JUDGMENT

ABDI HASSANhereinafter referred to as the Appellant was charged before the Chief Magistrate’s Court with the offence of STOCK THEFT contrary to Section 278 of the Penal Code.

“The particulars of the offence are that on the 13th day of October 2009 at Bachuma in Taita Taveta District, within the Coast Province, jointly with others not before the Court stole 30 cows valued at Kshs. 600,000/- the property of Aden Abdi Abshuro.

The appellant was arraigned in court on the 16th day of October 2009. He pleaded guilty to the charges and the facts thereof. He was accordingly convicted on his own plea of guilty. He was sentenced to serve seven years imprisonment. The appellant has appealed. He has filed six grounds of appeal as follows:-

1. That he is 15 years old and the Magistrate failed to consider his age contrary to the Criminal Procedure Code.

2. That he is not a habitual offender and the trial should have placed him on probation period.

3. That he is incarcerated with jail birds who might influence him to develop criminality and ruin his future.

4. That he is remorseful and willing to abide by any regulation that the court may deem appropriate upon his discharge from prison.

5. That his mother is aging and depends on him for domestic chores.

6. That the appellate court finds interest in his appeal and alter the sentence or restore back his freedom conditionally.

At the hearing of the appeal, the appellant appeared in person and relied on the written submissions he filed. In the said submission he pleads, with the court to consider that so far, he has served two years imprisonment, that he is remorseful and regrets the offence. That he has acquired skill in carpentry and joinery which he can use to improve his life. That the sentence of 7 years imposed on him is harsh as he is a first offender and a young man. He alleges that he is a minor who should have been considered for a non-custodial sentence.

In opposing the appeal against the sentence, the State represented by the Learned State Counsel Mr. Jami told the Court that the Appellant was sentenced to seven years imprisonment yet the maximum punishment provided for the offence is fourteen years, thus, the sentence was proper as the value of the stolen cows was worth Kshs. 600,000. But the State conceded the court could reconsider the sentence. I have considered the appeal, the grounds thereof, and the circumstances of the case.

The brief circumstances are that the complainant was informed by his herdsman that 30 cows had gotten lost from among a herd of cattle. He reported the matter at Mackonnon police post and investigations commenced. The footprints and tyre marks were followed. The herdsmen were interrogated. Allegedly the herdsmen confessed they sold the cows to Masaai herdsmen. Further investigations led to the arrest of four suspects, who included the appellant. They were charged as herein and the appellant pleaded guilty as aforesaid.

The issue in this matter is of sentence. I have noted from the appellant’s mitigation in the trial Court that he pleaded for “forgiveness”. Apparently the trial court did not seem to have requested for or given the record of conviction (if any) of the appellant, and neither did the prosecutor indicate that he was a first offender. That is not on record. All the same, the court seem to have held the view that, the appellant and the co-accused were “seemingly minors”. The court then ordered for an age assessment. When the matter was mentioned subsequently the court stated

“According to the age assessment reports of the 3red and 4th accused (the appellant) are of majority age. Each of them is sentence to a term of 7 years in prison.”

The exact age of the appellant was not indicated in the proceedings. I have perused the original record of trial court, and the medical report indicates the appellant’s age was assessed at approximately “20 years of age”. I also note that, although the appellant was remanded at Voi Police Station to assist in the recovery of the stolen cows, there is no record as to whether the cows were recovered or not. However, according to the State submissions the cows were recovered. The recovery of the cows would be a factor to consider when passing sentence. All in all, in assessing the appropriate sentence to pass, the court should be guided by factors such as the nature of the offence, the attitude of the accused person, prevalence of the type of offence, the seriousness of the offence, the circumstances under which the offence was committed, the effect of the sentence on the accused person, the fact that maximum sentence is intended for the worst offenders of the class of which the punishment is provided, etc.

In this particular case I have considered the appellant did not have any previous records of conviction. Thus, he was a first offender, he was aged 20 years, and the cows were recovered. He pleaded guilty and saved the court’s time. He sought for forgiveness in his mitigation. He submits that he regrets his action and is remorseful. He has so far served at least two years imprisonment from the 28th October 2009 todate. I find this is a suitable case for review of the sentence. The sentence of 7 years representing 50% of the maximum sentence was a little bit harsh. Though sentencing is a pure discretion of the court but the factors I have stated herein must be considered.

In summation, I set aside the sentence herein of seven years and reduce it to a custodial sentence of three and a half years the same to run from the date of sentence in the trial court.

Orders accordingly.

G.NZIOKA

JUDGE

10. 9.2012

Dated, delivered and signed in open court this 10th day of September 2012 at Mombasa.

G. NZIOKA

JUDGE

10. 9.2012

In the presence of:

Mr. Gioche for the State

Appellant – present in person

Benta – Court clerk/Kiswahili interpreter

Ibrahim – Somali Interpreter.

G. NZIOKA

JUDGE

10. 9.2012