[2018] KEHC 5451 (KLR)
The appellate court found that the trial magistrate did not set out reasons or circumstances for imposing a five-year sentence and appeared to have been influenced by a probation report indicating previous convictions, which was neither put to the appellant nor supported by a certificate of conviction. Given the...
Source-derived case information.
- Citation
- [2018] KEHC 5451 (KLR)
- Parties
- Appellant: Benard Magara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 43 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Legal Topics
- Sentencing Principles, Plea of Guilty, Stealing Motor Vehicle, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Magara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive in the circumstances.
- 2 Whether the trial magistrate erred in principle by considering extraneous matters or failing to consider relevant factors in sentencing.
Ratio Decidendi
The appellate court found that the trial magistrate did not set out reasons or circumstances for imposing a five-year sentence and appeared to have been influenced by a probation report indicating previous convictions, which was neither put to the appellant nor supported by a certificate of conviction. Given the appellant's plea of guilty and the lack of proper consideration of sentencing factors, the court held that the sentence was harsh and excessive. The sentence was therefore reduced to three years imprisonment from the date of the original sentence.
Court Disposition
sentence reduced
Orders
- The sentence of five years imprisonment is set aside and substituted with a sentence of three years imprisonment from the date of the original sentence.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 43 OF 2016
BENARD MAGARA............................................................APPELLANT
VERSUS
REPUBLIC.........................................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. N. Wairimu – SRM dated 17th November, 2015 at the Senior Principal Magistrate’s Court at Ogembo in Criminal Case No. 1934 of 2015)
JUDGMENT
The appellant, BENARD MAGARA was charged and convicted on his own plea of guilty for the offence of stealing a motor cycle contrary to section 278A of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 12th September 2015 at Mogonga Market, Kenyenya Sub-County within Kisii County jointly with another before the Court, stole a motor cycle make Bajaj Boxer Registration No. KMDN 843A valued at Kshs. 100,000/= the property of MOSES MEMUSI MPUKAINE. He was sentenced to five years imprisonment and now appeals against conviction and sentence.
At the hearing of the appeal, the appellant abandoned the appeal on conviction and urged the Court to review the sentence.
Sentencing is a discretion of the trial court which the appellate court should not ordinarily interfere unless it is shown that the trial magistrate took into account irrelevant factors, or failed to consider relevant facts or erred in principle or on consideration of the case, the sentence was harsh and excessive (See Wanjema v. Republic {1971}EA 493).
Under section 278A of the Penal Code, the maximum sentence is seven years imprisonment. In the sentencing notes the trial magistrate did not set out the reasons or circumstances under which she arrived at the sentence of five years imprisonment.
I have seen a report from the Probation Officer that shows that the appellant was previously convicted and served a prison term. The report was not put to the appellant nor a certificate of conviction or record thereof produced. The report must have influenced the trial magistrate although the proceedings do not make reference to it.
Given that the appellant pleaded guilty, I find the sentence harsh and I accordingly reduce it to three (3) years imprisonment from the date of the sentence.
Dated and delivered at Kisii this 10th day of July2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.