[2006] KEHC 381 (KLR)
The court found that although the appellant had three previous convictions, the sentence of 7 years imprisonment for kitchen breaking and committing a felony was harsh and excessive given the appellant's young age (20 years), the low value of the stolen items (sh.550/-), and the fact that the items were recovered....
Source-derived case information.
- Citation
- [2006] KEHC 381 (KLR)
- Parties
- Appellant: Benard Ouma Owiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 129 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- K Bauni
- Legal Topics
- Sentencing Principles, Repeat Offenders, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Ouma Owiyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment for kitchen breaking and committing a felony was harsh and excessive in the circumstances.
- 2 Whether the appellant's age, previous convictions, and recovery of stolen items warranted a reduction of sentence.
Ratio Decidendi
The court found that although the appellant had three previous convictions, the sentence of 7 years imprisonment for kitchen breaking and committing a felony was harsh and excessive given the appellant's young age (20 years), the low value of the stolen items (sh.550/-), and the fact that the items were recovered. The court held that a custodial sentence was appropriate due to the repeat offending, but the length of the sentence should reflect the mitigating circumstances. Accordingly, the sentence of 7 years was set aside and substituted with a sentence of 2 years imprisonment for the first count.
Court Disposition
sentence varied
Orders
- The sentence of 7 years imprisonment imposed in count 1 is set aside and substituted with a sentence of 2 years imprisonment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII
Criminal Appeal 129 of 2005
BENARD OUMA OWIYO …………...…………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………… RESPONDENT
(From original conviction and sentence of the CM’s court at Kisii incriminal case No. 383 of 2005)
JUDGMENT:
Appellant was convicted by Principal Magistrate Kisii on two offences the first being that of kitchen breaking and committing a felony contrary to s. 306(1) Penal Code and the second that of stealing contrary to s.275 Penal Code. He pleaded guilty and was sentenced to 7 years and 12 months imprisonment respectively. His appeal is against sentence.
Mr. Kemo pointed out that appellant had 3 previous convictions and the sentence was proper.
Indeed the appellant had three previous convictions. All the same the sentence of 7 years imprisonment in the first count was harsh. He told court that he was only 20 years old. The value of the stolen items was a mere sh.550/-. They were recovered. Thus though a custodial sentence was proper, 7 years imprisonment was harsh and excessive in the circumstances. I set aside the sentence of seven years imposed in count 1 and substitute it with one of 2 years imprisonment.
Dated 3rd April 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Kemo for State
Appellant present