[2019] KEHC 8799 (KLR)
Although the sentence of 5 years imprisonment was within the statutory maximum for shop breaking and stealing, the court found it manifestly excessive in the circumstances. The appellant was a first offender, had pleaded for leniency, and all the stolen goods were recovered. These mitigating factors warranted a...
Source-derived case information.
- Citation
- [2019] KEHC 8799 (KLR)
- Parties
- Appellant: Benard Ajwang’ Ogila; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 6 of 2016
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal partially allowed; sentence reduced
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Principles, Shop Breaking, Stealing, Mitigation, First Offender, Recovery of Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Ajwang’ Ogila
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 5 years imprisonment for shop breaking and stealing was manifestly harsh or excessive in the circumstances.
- 2 Whether the court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
Although the sentence of 5 years imprisonment was within the statutory maximum for shop breaking and stealing, the court found it manifestly excessive in the circumstances. The appellant was a first offender, had pleaded for leniency, and all the stolen goods were recovered. These mitigating factors warranted a reduction of the sentence. The court exercised its discretion to set aside the original sentence and substitute it with a term of 4 years imprisonment, effective from the date of the original sentencing, resulting in the appellant having already served his sentence and ordering his immediate release unless otherwise lawfully held.
Court Disposition
appeal partially allowed; sentence reduced
Orders
- The sentence of 5 years imprisonment imposed upon the appellant is set aside.
- The appellant is sentenced to 4 years imprisonment with effect from 11th March, 2015.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NANYUKI
CRIMINAL APPEAL NO 6 OF 2016
BENARD AJWANG’ OGILA.................................APPELLANT
VERSUS
REPUBLIC...........................................................RESPONDENT
(Appeal from original Sentence dated 11/03/2015 in Nanyuki
CM Criminal Case No 190 of 2014 – E Bett, SRM)
J U D G M E N T
1. The Appellant herein, BERNARD AJWANG’ OGILA, was convicted after trial, of shop breaking and stealing contrary to section 306(a) of the Penal Code. It was alleged that in the night of 18th and 19th February, 2014 in Nanyuki Town in Laikipia County, with intent to steal, he broke and entered the shop of one MERCY NYAWIRA KIGUTA and stole from therein shop goods (listed in a schedule attached to the charge sheet) valued at KShs 65,000/00, the property of the said complainant. On 11/03/2015 the Appellant was sentenced to 5 years imprisonment. He has appealed against that sentence only.
2. I have considered the Appellant’s submissions and those of the Respondent (through its learned counsel) who opposed the appeal. Indeed as stated by the learned counsel, the sentence imposed upon the Appellant was lawful. The only issue to consider is whether it was manifestly harsh or excessive in the circumstances.
3. The maximum sentence imposed by the law for the offence is 7 years imprisonment. The Appellant got five 5 years, more than two–thirds of the maximum. He was a first offender whose mitigation was that he had a wife and children. His plea to the trial was that he be given a non-custodial sentence. This court was informed by the learned prosecution counsel that all the stolen goods were recovered.
4. In the particular circumstances of this case, I consider that a sentence of 5 years imprisonment was manifestly excessive. This court is therefore entitled to interfere with it.
5. I will therefore partially allow this appeal against sentence by setting aside the sentence of 5 years imprisonment imposed upon the Appellant and substituting therefor a term of imprisonment of four (4) years imprisonment with effect from the date of the original sentencing, 11th March, 2015.
6. This therefore means that the Appellant has already served his sentence, and he should be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF APRIL 2019.
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 3RD DAY OF APRIL 2019