[2019] KEHC 7604 (KLR)
The High Court found that the sentence of three years imprisonment imposed on the appellant, a first offender who admitted to stealing Kshs.2,000, was excessive and unwarranted. The court emphasized that, despite a negative probation report, the absence of prior convictions and the minor value involved should have...
Source-derived case information.
- Citation
- [2019] KEHC 7604 (KLR)
- Parties
- Appellant: Caroline Mwende Mutinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 44 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_on_sentence_only
- Legal Topics
- Sentencing Principles, First Offender, Stealing, Penal Code Section 275
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Mwende Mutinda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of three years imprisonment for theft of Kshs.2,000 by a first offender was excessive.
- 2 Whether the trial court erred by not considering the option of a fine for the appellant.
Ratio Decidendi
The High Court found that the sentence of three years imprisonment imposed on the appellant, a first offender who admitted to stealing Kshs.2,000, was excessive and unwarranted. The court emphasized that, despite a negative probation report, the absence of prior convictions and the minor value involved should have led the trial court to consider a non-custodial sentence or a fine. The State's concession reinforced this position. The period of eight months already served was deemed sufficient punishment, and the original sentence was set aside and substituted with the period served.
Court Disposition
appeal_allowed_on_sentence_only
Orders
- The appeal on sentence is allowed.
- The sentence of three years imprisonment is set aside and substituted with the period already served.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCRA NO. 44 OF 2018
CAROLINE MWENDE MUTINDA..........................................APPELLANT
VERSUS
REPUBLIC.................................................................................RESPONDENT
(Being an Appeal from the Judgment of Hon. M.K Mutegi (SRM) in the Senior Resident Magistrate’s Court
at Tawa Criminal Case No.218 of 2018, delivered on 4th September 2018)
JUDGMENT
1. Caroline Mwende Mutinda was on 28/08/2018 found guilty of the offence of stealing contrary to Section 275 of the Penal Code. She was said to have jointly with another stolen Kshs.2,000/=.
2. The learned trial magistrate called for a Probation Officer’s Report which turned out to be negative. She was then sentenced to three (3) years imprisonment.
3. She filed this appeal contesting the sentence only.
4. When the appeal came for hearing, she asked the court to forgive her and have the sentence reduced.
5. The State through M/S Owenga has conceded the appeal on sentence. She submitted that the trial court should have considered an option of a fine for the Appellant.
6. I have considered the appeal, the grounds raised and the submissions by the Appellant and the State.
7. The record shows that the Appellant admitted the offence the first day she was arraigned in court.
8. There were no antecedents produced in respect of the Appellant. She is therefore assumed to have been a first offender.
9. The sentence of three (3) years imprisonment for a first offender and for theft of Kshs.2,000/= was uncalled for. This is despite the negative Probation Officer’s Report.
10. The State does not support the sentence. She has already served eight (8) months imprisonment which is more than enough punishment for the offence.
11. I therefore allow the appeal on sentence only which I set aside. I substitute it with the period already served.
12. The Appellant shall be set free unless otherwise lawfully held on a separate warrant.
Orders accordingly.
DELIVERED, SIGNED & DATED THIS 16TH DAY OF MAY 2019, IN OPEN COURT AT MAKUENI.
..........................
H. I. ONG’UDI
JUDGE