[2018] KEHC 7085 (KLR)
The court found that the 1st appellant's plea was equivocal because the facts presented by the prosecution did not implicate her in the theft or show any common intention with the 2nd appellant. Therefore, her conviction was quashed and the sentence set aside. For the 2nd appellant, the plea was unequivocal and the...
Source-derived case information.
- Citation
- [2018] KEHC 7085 (KLR)
- Parties
- Appellant: Agnes Wanjiku Ngeru; Appellant: Jotham Munene Njeri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 91 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- 1st appellant's appeal allowed; conviction quashed and sentence set aside. 2nd appellant's appeal against conviction dismissed; appeal against sentence allowed; sentence reduced to eight months imprisonment from date of sentencing.
- Judges
- DW Mbuteti
- Legal Topics
- Stealing, Plea of Guilty, Sentencing Illegality, Conviction Quashing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Wanjiku Ngeru
Appellant
Jotham Munene Njeri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the pleas of guilty by both appellants were unequivocal and supported by the facts.
- 2 Whether the sentence imposed exceeded the statutory maximum under section 275 of the Penal Code.
- 3 Whether the conviction and sentence against each appellant should be upheld or set aside.
Ratio Decidendi
The court found that the 1st appellant's plea was equivocal because the facts presented by the prosecution did not implicate her in the theft or show any common intention with the 2nd appellant. Therefore, her conviction was quashed and the sentence set aside. For the 2nd appellant, the plea was unequivocal and the facts supported his conviction for theft. However, the sentence of five years imprisonment imposed by the trial court was manifestly illegal, as the maximum sentence under section 275 of the Penal Code is three years. Considering that the stolen items were recovered, restored to the owner, and valued at only KShs 8,800, and that the 2nd appellant had already served nine months,...
Court Disposition
1st appellant's appeal allowed; conviction quashed and sentence set aside. 2nd appellant's appeal against conviction dismissed; appeal against sentence allowed; sentence reduced to eight months imprisonment from date of sentencing.
Orders
- The conviction and sentence against the 1st appellant are quashed and set aside.
- The 2nd appellant's conviction is upheld but the sentence is set aside and substituted with eight months imprisonment from 21/11/2016.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEALS NOs 91 OF 2016 AND 33 OF 2017 (CONSOLIDATED)
(Appeal from original Conviction and Sentence in Kangema SRM Criminal Case No 436 of 2016 – D. M. Kivuti SRM)
1. AGNES WANJIKU NGERU
2. JOTHAM MUNENE NJERI........................APPELLANTS
VERSUS
REPUBLIC........................................................RESPONDENT
J U D G M E N T
1. The Appellants herein, Agnes Wanjiku Ngeru and Jotham Munene Njeri;were respectively the 2nd and 1st accused before the trial court. They pleaded guilty to the main count of stealing contrary to section 275 of the Penal Code. It was alleged in the charge that on 17/11/2016 at about 16. 00 hours at Kahuhia Girls High School within Murang’a County, they jointly stole 11 water taps (metallic ½ - inch) valued at KShs 8,800/00, the property of the said school. They were convicted after admitting the facts given by the prosecution. The Appellants were each sentenced to five (5) years imprisonment. They appealed against both conviction and sentence.
2. The 1st Appellant’s plea was clearly equivocal. The facts as stated by the prosecution disclosed that the theft was committed by the 2nd Appellant alone. There was nothing in the facts to show that he was with the 1st Appellant; nor was any common intention disclosed. There was no indication that the 1st Appellant knew, or had reason to believe, that the water taps were stolen.
3. As for the 2nd Appellant, his plea was unequivocal. The facts narrated by the prosecution showed that he stole the water taps and went round trying to sell them until he was arrested. He fully admitted those facts.
4. As for the sentence meted out, the same was manifestly illegal. The maximum custodial sentence prescribed for theft under section 275 of the Penal Code is three (3) years imprisonment. The Appellants were each awarded five (5) years! By the time that the appeal was heard the Appellants had already served nine (9) months.
5. Bearing in mind that the items stolen were all recovered and restored to the owner, and that they were all valued at only KShs 8,800/00, I considered that the 2nd Appellant had already been punished enough.
6. It was for all the above reasons that I allowed the 1st Appellant’s appeal in its entirety on 12/07/2017, quashed the conviction and set aside the sentence imposed upon her. For reasons also appearing above, I dismissed the 2nd Appellant’s appeal against the conviction; but I allowed his appeal against the sentence of five (5) years imprisonment. I set the same aside and substituted therefor a sentence of eight (8) months imprisonment from the date of his sentencing (21/11/2016).
DATED AND SIGNED AT MURANG’A THIS 19TH DAY APRIL 2018
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 20THDAY OF APRIL 2018