[2018] KEHC 7577 (KLR)
The court found that while the offence of malicious damage to property is serious, the sentence of three years' imprisonment was manifestly harsh and excessive in light of the fact that the appellant's previous conviction for rape, which may have influenced the sentencing, was subsequently quashed on appeal. The...
Source-derived case information.
- Citation
- [2018] KEHC 7577 (KLR)
- Parties
- Appellant: Benard Muganda Opiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 95 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal on sentence allowed in part
- Judges
- DAS Majanja
- Legal Topics
- Malicious Damage to Property, Sentencing Principles, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Muganda Opiyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for malicious damage to property was manifestly harsh and excessive.
- 2 Whether the prior conviction for rape, which was later quashed, improperly influenced the sentence.
Ratio Decidendi
The court found that while the offence of malicious damage to property is serious, the sentence of three years' imprisonment was manifestly harsh and excessive in light of the fact that the appellant's previous conviction for rape, which may have influenced the sentencing, was subsequently quashed on appeal. The court held that the sentence should be reduced to two years' imprisonment effective from the original sentencing date, with the balance of the sentence to be served under community service. The appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
sentence varied; appeal on sentence allowed in part
Orders
- The sentence of three years' imprisonment is set aside and substituted with two years' imprisonment effective from 30th September 2016.
- The balance of the sentence shall be served under community service.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
(CORAM: MAJANJA J.)
CRIMINAL APPEAL NO. 95 OF 2016
BETWEEN
BENARD MUGANDA OPIYO.............APPELLANT
AND
REPUBLIC..........................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. C.A.S. Mutai, PM delivered on 30th September 2016 at the Butere Senior Resident Magistrate’s Court in Criminal Case No. 512 of 2015)
JUDGMENT
1. The appellant, BENARD MUGANDA OPIYO, was charged, together with others, and convicted of the offence of malicious damage to property contrary to section 339(1) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars are that on 1st October 2013 at Butere Police Station within Kakamega County he, jointly with others, willfully damaged two police hand cuffs serial No. 05770 and No. 00707 valued a Kshs. 14,000/= property of the Kenya Government.
2. He was sentenced to three years’ imprisonment and now appeals against conviction and sentence. At the hearing of the appeal he only agitated his case on the basis that the sentence was manifestly harsh and excessive. He explained that at the time he was sentenced, he was serving a sentence for rape but the sentence was set aside on appeal in Kakamega HCCRA No. 116 of 2015.
3. I have reviewed the sentence and I consider the offence serious. However, I note that the previous sentence may have been enhanced by the fact that he had been convicted for an offence for which the sentence was subsequently quashed by the High Court.
4. I therefore set aside the sentence and reduce the same to two (2) years imprisonment which shall be effective from 30th September 2016. The balance of the sentence shall be served under community service. The appellant is ordered released unless otherwise lawfully held.
DATED and DELIVERED at KAKAMEGA this 5th day of April 2018.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Ng’etich, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.