[2007] KEHC 1232 (KLR)
The court found that the sentence of 5 years imprisonment imposed by the trial magistrate was illegal because it exceeded the statutory maximum of 3 years for theft under section 275 of the Penal Code. The appellate court quashed the illegal sentence and substituted it with a lawful sentence of 2 years imprisonment,...
Source-derived case information.
- Citation
- [2007] KEHC 1232 (KLR)
- Parties
- Appellant: Benson Nduba Njeri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 502 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Illegality, Theft Offences, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Nduba Njeri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 5 years imprisonment imposed for theft under section 275 of the Penal Code was lawful.
- 2 What is the appropriate sentence for the offence of theft under section 275 of the Penal Code.
Ratio Decidendi
The court found that the sentence of 5 years imprisonment imposed by the trial magistrate was illegal because it exceeded the statutory maximum of 3 years for theft under section 275 of the Penal Code. The appellate court quashed the illegal sentence and substituted it with a lawful sentence of 2 years imprisonment, taking into account that the appellant was not a first offender. The State's concession of the appeal was proper in light of the clear illegality.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence of 5 years imprisonment imposed by the subordinate court is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 502 of 2006
BENSON NDUBA NJERI……….……………………..APPELLANT
VERSUS
REPUBLIC …………………………….…….………RESPONDENT
(From the original decision in Gatundu Resident Magistrate’s Criminal Case No. 553 of 2006 – A. Lorot RM)
J U D G M E N T
BENSON NJUBA NJERI, the appellant, was charged before the subordinate court with the offence of stealing contrary to section 275 of the Penal Code. The particulars of offence were that on 24th April 2006 at Gatundu Township in Thika District within Central Province stole cash Kshs.4,000/= the property of JAMES KYMANI NJOROGEon being called upon to plead, the appellant was recorded as having pleaded guilty. He was convicted and sentence to serve 5 years imprisonment. Being dissatisfied with the subordinate court’s decision, he has appealed to this court. His grounds of appeal challenge both the conviction and sentence. However, during the hearing of the appeal he merely asked for mercy, as he claimed to be 20 years old.
Learned State Counsel Mr. Makuta, conceded to the appeal on the ground that the sentence of 5 years imprisonment was illegal as the maximum sentence for the offence was 3 years imprisonment.
Indeed, the maximum sentence for theft under section 275 of the Penal Code (Cap. 63) on which the appellant was convicted is 3 years imprisonment. The learned magistrate sentenced the appellant to serve 5 years imprisonment, which was clearly an illegal sentence. I will therefore have to correct the illegality. The appellant was also not a first offender. However, since the maximum sentence for the offence is 3 years imprisonment, I will order that he serves 2 years imprisonment. Learned State Counsel conceded to the appeal and was right to do so.
Consequently, I allow the appeal on sentence, quash the sentence imposed by the learned magistrate and order that instead the appellant will serve a sentence of 2 years imprisonment from the date on which he was sentenced by the learned magistrate.
Dated and delivered at Nairobi this 19th day of November, 2007.
George Dulu
Judge
In the presence of ?
Appellant in person
Mr. Makura for State
Eric – court clerk