[2014] KEHC 5069 (KLR)
The court found that although the offence of house breaking and stealing carries a maximum sentence of seven years, the appellant's guilty plea, first offender status, and partial recovery of stolen goods were significant mitigating factors. The original sentence of five years was deemed harsh in light of these...
Source-derived case information.
- Citation
- [2014] KEHC 5069 (KLR)
- Parties
- Appellant: Benjamin Kimeu Mwakavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 212 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appeal partially allowed
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Principles, House Breaking, Stealing, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Kimeu Mwakavi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment for house breaking and stealing was harsh and excessive.
- 2 Whether the appellant's guilty plea and status as a first offender warranted a reduced sentence.
Ratio Decidendi
The court found that although the offence of house breaking and stealing carries a maximum sentence of seven years, the appellant's guilty plea, first offender status, and partial recovery of stolen goods were significant mitigating factors. The original sentence of five years was deemed harsh in light of these circumstances. The court exercised its discretion to reduce the sentence to two and a half years imprisonment on the first limb and two years on the second limb, to run concurrently, resulting in an effective sentence of two and a half years. The appeal succeeded only to the extent of the sentence reduction.
Court Disposition
sentence reduced; appeal partially allowed
Orders
- Sentence reduced to two and a half years imprisonment on the first limb and two years on the second limb, to run concurrently.
- Effective sentence is two and a half years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 212 OF 2012
BENJAMIN KIMEU MWAKAVI .........................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 130 of 2012 of the Principal Magistrate's Court at Voi – Hon. Nyakundi - PM)
JUDGMENT
The Appellant BENJAMIN KIMEU MWAKAVI was Convicted and Sentenced to five(5) years Imprisonment for the offence of House breaking and Stealing contrary to Section 304 (1) and 279(b) of the Penal Code.
The Accused pleaded guilty to the charges and he was Convicted on his own plea. He was treated a first offender and a probation report was ordered for before Sentencing. That probation report was found to be unfavourable and the appellant was Sentenced to five (5) years Imprisonment.
Being aggrieved by the Conviction and Sentence the appellant lodged this appeal. He has abandoned his grounds on Conviction and attacks the Sentence for being harsh and excessive.
The charge for house breaking and stealing carries a maximum Sentence of seven (7) years Imprisonment. It is noted that the Appellant pleaded guilty to the charge and saved the Court precious Judicial time. He was treated as a first offender. Some of the stolen goods being shoes were recovered.
I find the Sentence of five (5) years to have been harsh. It is accordingly reduced to two and a half (2 ½) years Imprisonment on the first limb and two (2) years Imprisonment on the 2nd limb. Sentence to run concurrently.
He will therefore effectively serve a Sentence of two and half (2 ½) years Imprisonment term from the time of Conviction.
To that extend only does his appeal succeed.
Judgment delivered dated and signed this 16th day of May, 2014.
…............
M. MUYA
JUDGE
16TH MAY, 2014
In the presence of:-
Learned State Counsel Mr. Ayodo
The Appellant present
Court clerk Musundi