[2004] KEHC 1811 (KLR)
Although the appellant is a first offender and pleaded guilty, the nature of the offence involved a breach of community trust, making a non-custodial sentence inappropriate. The court found that returning the appellant to the same community under probation or community order could aggravate the situation. However,...
Source-derived case information.
- Citation
- [2004] KEHC 1811 (KLR)
- Parties
- Appellant: Ali Gari Ngome; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 366 of 2003
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- sentence varied
- Legal Topics
- Sentencing Principles, First Offender Treatment, Guilty Plea, Community Trust Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Gari Ngome
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the custodial sentence of 3 years imposed on a first offender who pleaded guilty was excessive and harsh.
- 2 Whether the court should interfere with the sentence imposed by the lower court.
Ratio Decidendi
Although the appellant is a first offender and pleaded guilty, the nature of the offence involved a breach of community trust, making a non-custodial sentence inappropriate. The court found that returning the appellant to the same community under probation or community order could aggravate the situation. However, considering the appellant's status as a first offender and his guilty plea, the original sentence of 3 years was deemed excessive. The court exercised its discretion to reduce the sentence to 18 months imprisonment, balancing the need for punishment with the mitigating factors present.
Court Disposition
sentence varied
Orders
- The sentence of 3 years imprisonment is set aside and substituted with a sentence of 18 months imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 366 OF 2003
(From Original Conviction and Sentence in Criminal Case No.2257 of 2003 of the Resident Magistrate’s Court at Kwale –L.N. Mbatia, Ms –S.R.M.)
ALI GARI NGOME…………………………………………APPELLANT
=V E R S U S=
REPUBLIC…………………………………………………RESPONDENT
J U D G M E N T
This appeal is against sentence only. The Appellant pleaded guilty in the lower court.
The Appellant is a first offender. He readily pleaded guilty to the charge. He was sentenced to 3 years imprisonment. He now, through his advocate pleads that the custodial sentence is excessive and harsh particularly in view of his advanced age. His counsel urged that the custodial sentence is not suitable in the circumstances.
I have considered the submissions of counsel and also of State Counsel. The stand of the State is that when the Appellant was given opportunity to mitigate he had nothing to say. He kept quiet. Ms Kwena submitted further that the court should not interfere as the sentence was not illegal.
It is a correct principle of sentencing that first offenders should not be placed in prison where they will be exposed to hardcore criminals. Also that an accused who has pleaded guilty should be treated with leniency – he has saved everybody’s time. However, in this case there is a serious aspect to it the Appellant has wronged his community. He has abused their trust. It would be inappropriate to put him under Community Order or on Probation because he would return to the same community who might think he has been left free. This might aggravate the situation.
For this reason I find imprisonment term to be more reasonable. The maximum sentence here is 7 years imprisonment. I think it is fair to set the sentence of 3 years aside and substitute the same with a lesser term of 18 months only. Ordering restitution may not be effective. The Appellant does not appear to be a man of substance. The money which he was entrusted with was being paid to him from time to time in instalments. However, I am not saying that a civil suit should not be preferred to recover the money in a civil court.
For these reasons the Appellant is sentenced to 18 months imprisonment from the date of conviction.
Dated at Mombasa this 28th day of January, 2004.
JOYCE KHAMINWA
J U D G E
Judgment read in open court in presence of Ms Kwena – State Counsel And Mr. Gakuhi – holding brief for Weloba.