[2010] KEHC 3694 (KLR)
The court found that, given the appellant's status as a first offender, her role as a single parent with dependents, and her HIV positive status, the interests of justice would be better served by imposing a non-custodial sentence. The court considered the mitigation and medical report provided by the appellant and...
Source-derived case information.
- Citation
- [2010] KEHC 3694 (KLR)
- Parties
- Appellant: B.W. W; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 689 of 2007
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed in part; custodial sentence set aside and substituted with suspended sentence
- Judges
- MA Warsame
- Legal Topics
- Sentencing Principles, False Pretences, Mitigation, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.W. W
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the custodial sentence imposed on the appellant was appropriate in light of her mitigation and personal circumstances.
- 2 Whether the appellant's health status and status as a first offender warranted a non-custodial sentence.
Ratio Decidendi
The court found that, given the appellant's status as a first offender, her role as a single parent with dependents, and her HIV positive status, the interests of justice would be better served by imposing a non-custodial sentence. The court considered the mitigation and medical report provided by the appellant and determined that a suspended sentence would allow for rehabilitation and address her health concerns, while still holding her accountable for the offence. The original custodial sentence was therefore set aside and replaced with a two-year suspended sentence, with the condition that any further offence within that period would reactivate the original sentence.
Court Disposition
appeal allowed in part; custodial sentence set aside and substituted with suspended sentence
Orders
- The sentence of 3 years imprisonment is set aside.
- The appellant is sentenced to 2 years suspended sentence from the date of judgment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 689 of 2007
B.W. W………………………….. ………………………..APPELLANT
VERSUS
REPUBLIC …………………………………..……………..RESPONDENT
(From the original conviction and sentence in Criminal Case No. 685 of 2005 of the Chief
Magistrate’s Court at Nairobi by M. W. Muigai (Mrs.) – Principal Magistrate)
JUDGEMENT
The appellant was charged with obtaining money by false pretences contrary to section 313 of the Penal Code. It is alleged the appellant together with her co-accused person before the lower court obtained Kshs.267,000/= from Peter Njenga Wamuyu by falsely pretending that they were in a position to sell motor vehicle registration No. KAP 694L Toyota Hiace a fact they knew to be false. After full trial they were convicted and sentenced to 3 years imprisonment. The appellant filed the present appeal against the sentence only. It is the contention of the appellant that she is single parent with two sons who are school going children and who depend on her for their education and livelihood. It is also her contention that she is HIV positive and the conditions at the prison is unfavourable to her health. It is also her contention that she is a first offender who needs rehabilitation in order to reform herself.
I have considered the mitigation and in particular the medical report filed by the appellant on her HIV status and in my view it is in the interest of justice to give the appellant a non-custodial sentence. In the premises I set aside the sentence of 3 years and substitute with 2 years suspended sentence from today. In the event the appellant commits an offence within the next 2 years, she will also serve the earlier sentence imposed by the earlier court. In that regard therefore the appellant’s appeal against sentence succeeds to that extent.
Dated, signed and delivered at Nairobi this 14th day of January 2010.
M. WARSAME
JUDGE