[2017] KEHC 2337 (KLR)
The court found that the sentences imposed by the trial magistrate were not harsh given the statutory maximums for burglary and stealing under the Penal Code. The only error identified was the failure to specify the sentence on each limb of the offences. The High Court amended the sentence to clarify that the...
Source-derived case information.
- Citation
- [2017] KEHC 2337 (KLR)
- Parties
- Appellant: Ali Odhiambo Okaroni; Appellant: Musa Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 32 & 33 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Burglary, Stealing, Repeat Offender, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Odhiambo Okaroni
Appellant
Musa Kariuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed on the appellants were harsh or excessive.
- 2 Whether the trial magistrate erred in not specifying the sentence on each limb of the offences.
Ratio Decidendi
The court found that the sentences imposed by the trial magistrate were not harsh given the statutory maximums for burglary and stealing under the Penal Code. The only error identified was the failure to specify the sentence on each limb of the offences. The High Court amended the sentence to clarify that the sentences apply to each limb and are to run concurrently, as originally ordered by the trial magistrate. The appeals against sentence were therefore dismissed, and the original sentences confirmed with the clarification that they run concurrently.
Court Disposition
appeal dismissed
Orders
- The appeal by each appellant is dismissed.
- The sentences imposed by the trial magistrate are confirmed, to run concurrently as ordered.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 32 OF 2016
[consolidated with Criminal appeal No. 33 of 2016]
1. ALI ODHIAMBO OKARONI
2. MUSA KARIUKI..................................APPELLANTS
VERSUS
REPUBLIC...................................................REPUBLIC
(From the original conviction and sentence in Criminal case No. 292 of 2015 of the Chief
Magistrate’s Court at Busia by Hon. H.N Ndung’u– Chief Magistrate)
JUDGMENT
ALI ODHIAMBO OKARONI and MUSA KARIUKIthe appellants were convicted in four counts for the offences of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code.
The particulars of the offences were that on diverse dates the two were involved in the offences and stole various properties from the complainants therein.
The first appellant was a repeat offender and was sentenced to serve 5 years imprisonment on each count whereas the second appellant who had no previous record was sentenced to serve 3 years on each count. Both have appealed against the sentences.
The appellants were in person. They contended that the sentences were harsh and that they have reformed.
The state opposed the appeal through Mr. Owiti, the learned counsel. He argued that the sentences were not harsh.
The facts of the prosecution case were briefly as follows:
On diverse dates between 21st November 2014 and 1st January 2015, the appellants were involved in a spate of burglaries and stealing where properties worth thousands of Kenya shillings were stolen. After trial they were convicted and sentenced. They are contesting the sentences. Section 279(b) of the Penal code provides as follows:
if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;the offender is liable to imprisonment for fourteen years.
Whereas section 304(2) of the Penal Code provides as Follows:
If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
It is therefore clear that the sentence meted by the learned trial magistrate was lenient. The only error that I note is the failure to sentence the appellants on each limb. I accordingly amend the sentence of each appellant to read after the sentence:
On each limb. The sentence to run concurrently.The sentences will run concurrently as ordered by the learned trial magistrate.
The appeal by each appellant is accordingly dismissed.
DELIVEREDandSIGNEDatBUSIA this 7thdayof November, 2017
KIARIE WAWERU KIARIE
JUDGE