[2014] KEHC 797 (KLR)
The court found that the sentence of six years imposed by the trial court was within the statutory maximum for the offences charged. However, considering the appellants' remorse, youth, and efforts at rehabilitation, the court exercised its discretion to reduce the sentence. The court held that there was no...
Source-derived case information.
- Citation
- [2014] KEHC 797 (KLR)
- Parties
- Appellant: Brian Oduor Omollo; Appellant: David Omondi Ngira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 132 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Judges
- HK Chemitei
- Legal Topics
- Sentencing Principles, Stealing, School Breaking, Handling Stolen Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Oduor Omollo
Appellant
David Omondi Ngira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive, unlawful, or contained an apparent error on the face of the record.
- 2 Whether the appellate court should interfere with the sentence imposed on the appellants.
Ratio Decidendi
The court found that the sentence of six years imposed by the trial court was within the statutory maximum for the offences charged. However, considering the appellants' remorse, youth, and efforts at rehabilitation, the court exercised its discretion to reduce the sentence. The court held that there was no procedural error or unlawfulness in the original sentence, but in light of the mitigating factors, the sentence should be reduced to three years' imprisonment from the date of the trial court's judgment.
Court Disposition
sentence reduced
Orders
- The sentence of six years' imprisonment imposed by the trial court is set aside.
- The appellants shall serve three years' imprisonment from the date of the judgment of the trial court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO.132 OF 2013
BRIAN ODUOR OMOLLO...............................................................APPELLANT
VERSUS
REPUBLIC.....................................................................................RESPONDENT
J U D G M E N T
For the purposes of this judgment I shall deliberately consolidate this matter with file no. 134 of 2013 between David Omondi Ngira who is a co-appellant. Both of them were charged in the same matter and their Petition of Appeal are similar word for word. This shall save the precious judicial time.
Both were charged with several offences of stealing namely:
Count I:School Breaking and Committing a felony contrary to section 306 (a) (b) of the Penal Code.
Particulars: Brian Oduor Omollo, David Omondi Ngira, Patrick Omondi Anyango and Japheth Odongo Ogutu on the night of 5th and 6th day of September 2013 at Anyiko sub location in Gem District within Siaya County jointly with others not before court broke and entered a building namely school of Anyiko primary and committed therein a felony namely theft.
Count II:Stealing contrary to section 279 (b) of the Penal Code.
Particulars: Brian Oduor Omollo, David Omondi Ngira, Patrick Omondi Anyango and Japheth Odongo Ogutu on the night of 5th and 6th day of September 2013 at Anyiko sub location in Gem District within Siaya County jointly with others not before court stole six shutter doors, three rolls of chicken wire, one wheel barrow, five water pipes two tables, one toilet door, one gong bell and 21 pieces of halt iron sheets all valued at Kshs. 37,000/= the property of Anyiko primary school from the store of the said Anyiko primary school.
Alternative Charge: Handling Stolen Goods contrary to section 322 (2) of the Penal Code.
Particulars: Brian Oduor Omollo, Patrick Omondi Anyango on the night of 6th day of September 2013 at Anyiko sub location in Gem District within Siaya County otherwise that in the course of stealing dishonestly received or retained one shutter door knowing or having reason to believe to be stolen goods
Each one of them pleaded to the charge and were sentenced to serve 6 years imprisonment. The complainant herein Anyiko primary school where the two together with others broke into it and stole the various assorted items.
The substance of their appeal is purely mitigation. They are praying that this court should interfere with the sentence and reduce it. The question of interfering with the sentence on appeal is well settled. The court can only interfere if the same was unlawful, excessive or there was apparent error on the face of record. In this matter there was no procedural error done by the court. The period provided for such an offence is 7 years. The court mete rule out 6 years against the appellants.
I have perused their submissions which appear remorseful. David Omondi Ngira has further enrolled himself in a theological training within the prison. Brian Oduor has equally advanced other reasons as to why he thinks this court should consider their plea.
Having heard the appellants as well as the respondent, there is no doubt that the appellant stole public property. They readily admitted so. They should therefore be allowed to serve the consequences of their choice. I however note that they are young and energetic and that they should put their energies into a useful course.
In light of the above observation I shall interfere with the sentence by reducing the 6 years period meted by trial court lawfully and order that they serve three (3) years from the date of the judgment of the trial court.
Orders accordingly.
Dated, signed and delivered at Kisumu this 9th day of December, 2014.
H.K CHEMITEI
JUDGE