[2019] KEHC 7903 (KLR)
The court found that the trial court failed to adequately consider the appellant's guilty plea and his status as a first offender as mitigating factors in sentencing. Given the nature of the offence and the time already served (three years), the five-year sentence was deemed excessive. The High Court exercised its...
Source-derived case information.
- Citation
- [2019] KEHC 7903 (KLR)
- Parties
- Appellant: Bonface Abuyabo Ashiali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence quashed and substituted with term served; appellant released unless otherwise lawfully held
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Burglary, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Abuyabo Ashiali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 5 years' imprisonment for burglary and stealing was excessive given the appellant's guilty plea and status as a first offender.
Ratio Decidendi
The court found that the trial court failed to adequately consider the appellant's guilty plea and his status as a first offender as mitigating factors in sentencing. Given the nature of the offence and the time already served (three years), the five-year sentence was deemed excessive. The High Court exercised its appellate jurisdiction to quash the original sentence and substitute it with a sentence of time served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence quashed and substituted with term served; appellant released unless otherwise lawfully held
Orders
- The sentence of 5 years' imprisonment is quashed and substituted with a sentence of term served.
- The appellant is to be set free unless otherwise lawfully held under a separate warrant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CORAM: D. S. MAJANJA J.
CRIMINAL APPEAL NO. 64 OF 2019
BETWEEN
BONFACE ABUYABO ASHIALI.....................APPELLANT
AND
REPUBLIC.......................................................RESPONDENT
(Being an appeal against the original conviction and sentence of Hon.C. Obulutsa, CM dated 26th August 2016 at the Magistrates Court at Eldoret in Criminal Case No. 4931 of 2016)
JUDGMENT
1. BONFACE ABUYABO ASHIALI, the appellant, was convicted of the offence of burglary and stealing contrary to section 304 (2) as read with section 279 (b) of the Penal Code (Chapter 63 of the Laws of Kenya). He was sentenced to 5 years’ imprisonment. Since he pleaded guilty, he appealed against sentence only.
2. I have considered the nature of the offence, the fact that the appellant pleaded guilty and was a first offender are factors that the trial Court ought to have taken into account. In my view, a sentence of 5 years’ imprisonment was excessive.
3. In the circumstances and as the appellant has been in prison for the last three years, I quash the sentence of imprisonment and substitute it with one of term served. The appellant is set free unless otherwise lawfully held under a separate warrant.
DATED and DELIVERED at ELDORET this 26th day of APRIL 2019.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Kegehi, Prosecution Counsel, instructed by the Director of Public Prosecutions for the respondent.