[2003] KEHC 362 (KLR)
The court found that while the appellants were young, first offenders, and had pleaded guilty, only a portion of the stolen property was recovered and the seriousness of the offence could not be ignored. The court balanced the mitigating factors against the interests of the victim and the gravity of the crime....
Source-derived case information.
- Citation
- [2003] KEHC 362 (KLR)
- Parties
- Appellant: Anwar Ali Anjawa; Appellant: Muhsin Abdalla; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 382 of 2002
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Sentence reduced; appeal allowed to the extent of sentence reduction only.
- Legal Topics
- Sentencing Principles, Burglary, Stealing, First Offender Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anwar Ali Anjawa
Appellant
Muhsin Abdalla
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed on the appellants was excessive given their status as first offenders and their plea of guilty.
- 2 Whether the recovery of stolen items and demonstration of remorse warranted a reduction of sentence.
Ratio Decidendi
The court found that while the appellants were young, first offenders, and had pleaded guilty, only a portion of the stolen property was recovered and the seriousness of the offence could not be ignored. The court balanced the mitigating factors against the interests of the victim and the gravity of the crime. Consequently, the court held that the original sentence was excessive and reduced it to two years imprisonment and two strokes of the cane for each appellant, reflecting both the need for punishment and the mitigating circumstances.
Court Disposition
Sentence reduced; appeal allowed to the extent of sentence reduction only.
Orders
- Sentence of 4 years imprisonment and two strokes of the cane set aside.
- Each appellant to serve 2 years imprisonment and receive 2 strokes of the cane.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 382 OF 2002
(Being an appeal against Sentence in Criminal Case No. 2199 of 2002 by the Chief Magistrate’s Court at Mombasa J.S. Mushelle (S.P.M.)
ANWAR ALI ANJAWA ….………………………….. APPELLANT
- VERSUS -
REPUBLIC …………………………………………. RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 72 OF 2003
MUHSIN ABDALLA …….…………………………. APPELLANT
- VERSUS -
REPUBLIC …………………………………………. RESPONDENT
J U D G M E N T
The two appeals were consolidated on application by the State Counsel. Both Appellants were charged and convicted on a charge of Burglary and Stealing Contrary to Section 304 (2) and 279 (b) of the Penal Code. They were convicted on their own plea of guilty and Sentenced to 4 years imprisonment plus two strokes of the cane each.They have preferred an appeal against sentence only.
The facts of the case were that the complainant had left for Nairobi on 7. 8.02 and requested her brother who lived in the neighbourhood to look after her house. However the said brother also travelled to Lamu and returned on 15. 8.02 and on 16. 8.02 at around 1. 00 p.m. while at work he received information that the complainant’s house had been broken into. When he arrived at the house he found stolen the items named in the charge sheet all valued at Kshs.538,600/=. However the thieves had been spotted and matter reported to Central Police Station. ANWARI ALI (NYAWA) was the first to be arrested and on being interrogated he admitted having stolen the items and led them to Majengo where 2 trumpets were found. He also lead police to where he had sold a third one. It was this same appellant who gave the names of his accomplices one of them being the second Appellant herein MUHSIN ABDALLAH (CHETAY). He too led the police to Bondeni area where two wooden beds were recovered.
Their Counsel Mr. Abubakar said the sentence was to harsh considering that the appellants were first offenders and the stolen items were recovered and they had pleaded guilty to the offence as a sign of remorse on their part. The State Counsel was in agreement but was opposed to substitution of the Sentence with a fine.
I have considered the facts as they appear on record and the mitigation. The appellants are no doubt young but it should not be overemphasized at the expense of the victim who only recovered a portion of the stolen items. The Appellants if truly remorseful should be prepared to suffer the consequences of their action. However I have also considered that they are first offenders and for the said reasons will reduce the sentence to one of 2 years and 2 strokes of the cane each. The appeal shall succeed to that extent only.
Dated ad Delivered at Mombasa this 18th day of June, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE