[2010] KEHC 3557 (KLR)
The court found that the trial magistrate did not sufficiently consider the appellant's mitigation, including his status as a first offender, his youth, his remorse, and the fact that the stolen cows were recovered. The appellate judge determined that these factors warranted a reduction in sentence. Given that the...
Source-derived case information.
- Citation
- [2010] KEHC 3557 (KLR)
- Parties
- Appellant: Allan Sakwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 49 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appellant to be released forthwith unless otherwise lawfully held
- Legal Topics
- Stock Theft, Sentencing, Mitigation, First Offender, Recovery of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Sakwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for stock theft was excessive in the circumstances.
- 2 Whether the appellant's mitigation and status as a first offender warranted a reduction of sentence.
Ratio Decidendi
The court found that the trial magistrate did not sufficiently consider the appellant's mitigation, including his status as a first offender, his youth, his remorse, and the fact that the stolen cows were recovered. The appellate judge determined that these factors warranted a reduction in sentence. Given that the appellant had already served almost a year in prison and the state did not oppose the appeal, the court substituted the original sentence with the period already served and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence reduced; appellant to be released forthwith unless otherwise lawfully held
Orders
- The sentence imposed by the trial court is set aside and substituted with the term of imprisonment already served from 18/03/2009 to the date of judgment.
- The appellant shall be set at liberty forthwith unless otherwise legally held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 49 of 2009
(From the Original Conviction and Sentence in Chief Magistrate’s Court Criminal Case No.90 of 2009 by the Resident Magistrate A.B.MONG’ARE)
ALLAN SAKWA:…………………………….…APPELLANT
VERSUS
REPUBLIC:…………………….………..…..RESPONDENT
JUDGMENT
ALLAN SAKWAwas convicted of the offence of stealing stock contrary to section 278 of the Penal Code. The particulars were that on 23/12/2008 he stole three cows valued at Kshs.100, 000/= the property of Rose Moshe. He was sentenced to serve imprisonment for five (5) years. He now appeals against sentence and prays that the sentence be reduced.
The Appellant explained the circumstances that led to the commission of the offence as differences between himself and his aunt who he alleged had harvested his crops and sold them and so he wanted to force her to pay him by taking away the cows. He is a first offender and a student who wishes to finalise his education. He said he was very remorseful and has learned his lesson. He has served imprisonment for almost a year now having been imprisoned on 13/03/2009.
It is evident that the trial magistrate was not moved by the Appellant’s mitigation and gave a fairly long term of imprisoned yet the stolen cows were recovered. The Appellant is a young student who says that he wishes to pursue his education. The state does not oppose the appeal on sentence. On my part I think that the Appellant should be given another chance. In the premises therefore I set aside the sentence and substitute the same with the term of imprisonment already served from 18/03/2009 to the date of this judgment. I order therefore that the Appellant be set at liberty forthwith unless otherwise legally held.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 4TH DAY OF MARCH 2010.
P.M.MWILU
JUDGE
IN THE PRESENCE OF
Paul Ekitela - Court Clerk
Present - Appellant
Mr. Kabaka - Counsel for the state.