[2018] KEHC 7235 (KLR)
The court found that the appellant, having served approximately 2½ years of a 3-year sentence and being a first offender with positive probation and performance reports, was a suitable candidate for sentence reduction. The court determined that the trial court had failed to adequately consider the appellant's...
Source-derived case information.
- Citation
- [2018] KEHC 7235 (KLR)
- Parties
- Appellant: Benson Musyoka Kivilu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 227 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period served; appellant to be released forthwith unless otherwise legally held
- Judges
- CM Kariuki
- Legal Topics
- Stealing by Servant, Sentencing, Mitigation, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benson Musyoka Kivilu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive in the circumstances.
- 2 Whether the appellant was a suitable candidate for a non-custodial sentence.
Ratio Decidendi
The court found that the appellant, having served approximately 2½ years of a 3-year sentence and being a first offender with positive probation and performance reports, was a suitable candidate for sentence reduction. The court determined that the trial court had failed to adequately consider the appellant's mitigation and the probation report recommending a non-custodial sentence. Consequently, the sentence was reduced to the period already served, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
sentence reduced to period served; appellant to be released forthwith unless otherwise legally held
Orders
- The sentence is reduced to the period served.
- The appellant is to be released forthwith unless otherwise legally held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. 227 OF 2017
BENSON MUSYOKA KIVILU ……………………..……..… APPELLANT
VERSUS
REPUBLIC …..……………………………………..............RESPONDENT
JUDGEMENT
1. The Appellant was charged with offence of stealing by servant contrary to section 281 Penal Code.
2. Particulars being that on 15/09/2015 at Nairobi city within Nairobi County being servant to Gladys Nduku Malonza as a farm manager stole Kshs. 102,720/= which came into his possession by virtue of his employment.
3. The Appellant pleaded guilty and he was sentenced to serve 3 years imprisonment.
4. Being aggrieved by the above verdict, he lodged an appeal to have his sentence reduced.
5. He was a first offender and he claimed to have been conned of the money. He says now that he has reformed and fit to return to the society. He did standard 8 while in prison and scored 320 marks and wishes to pursue his education outside prisons.
6. The probation report on record stated that he was a good candidate for non-custodial sentence given his young age. It was recommended that and alternative sentence be meted out to him.
7. The prosecution via Mrs. Ndenda state counsel, opposed appeal on the ground that he admitted the charge and the remission denied was not a must.
8. The court has noted and taken the circumstances herein into account. The Appellant has served about 2½ years and has a balance of about 5½ months to go.
9. However the probation report and his uncontested performance report indicate that he is a good candidate for releasing at this stage.
10. The court ignored recommendation and mitigation on record thus the court makes the following orders:-
1. The court reduces sentence to the period served.
2. The Appellant to be released forthwith unless otherwise legally held.
SIGNED DATED AND DELIVERED THIS 19TH DAY OF APRIL 2018 IN OPEN COURT.
C. KARIUKI
JUDGE
…………………….