[2014] KEHC 3093 (KLR)
The trial magistrate erred in law by treating 7 years as the minimum sentence for stock theft under section 278 of the Penal Code, which only prescribes a maximum of 14 years. The appellate court found that this misapprehension of the law constituted an error in principle, warranting interference with the sentence....
Source-derived case information.
- Citation
- [2014] KEHC 3093 (KLR)
- Parties
- Appellant: Chacha Mwita Marwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 15 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Stock Theft, Sentencing Principles, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Chacha Mwita Marwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in sentencing the appellant to the minimum term of 7 years for stock theft contrary to section 278 of the Penal Code.
- 2 Whether the sentence imposed was harsh and excessive in the circumstances.
Ratio Decidendi
The trial magistrate erred in law by treating 7 years as the minimum sentence for stock theft under section 278 of the Penal Code, which only prescribes a maximum of 14 years. The appellate court found that this misapprehension of the law constituted an error in principle, warranting interference with the sentence. Considering the appellant's admission of guilt, remorse, status as a first offender, and willingness to compensate the complainant, the appellate court held that the sentence imposed was excessive. The sentence was therefore reduced to time served, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 7 years imprisonment is set aside.
- The sentence is reduced to time served in custody.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
CRIMINAL APPEAL NO. 15 OF 2014
BETWEEN
CHACHA MWITA MARWA ……….……...…….... APPELLANT
AND
REPUBLIC …..……………………….…………..RESPONDENT
(Being an appeal from the original conviction and sentence in Criminal Case No. 524 of 2012 at Senior Resident Magistrate’s Court at Kehancha, Hon. T.A Sitati, RM dated on 14th February 2013
JUDGMENT
In the Subordinate Court, the appellant was charged with stealing stock contrary to section 278 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars were that on 7th May 2012 at Nyaroha Village of Kuria East District, Migori County, he stole one cow valued at Kshs. 40,000/= the property of MSM.
The prosecution called 5 witnesses and the accused was put on his defence. In his sworn testimony, he stated that, “it is true I sold the cow I intended to refund the money … I ask the courts time to repay … I ask for forgiveness.”In essence, the appellant admitted the offence and was properly convicted. I find no fault in the conviction and it is therefore affirmed.
The appellant was sentenced to serve 7 years imprisonment. In sentencing, the learned magistrate stated that “the minimum punishment is 7 years” and he proceeded to impose what he considered to be the minimum sentence.
The first appellate court will only interfere with sentence imposed by the trial court if it is satisfied that in arriving at the sentence, the trial court did not take into account a relevant factor or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive (see Wanjema v Republic[1971] EA 493). In this case the learned magistrate misconstrued the provision of section 278 of the Penal Codewhich only provides for a maximum sentence of 14 years imprisonment for the offence of stock theft. The appellate court is therefore entitled to interfere with the sentence as there was an error in principle.
The appellant was a first offender and readily showed remorse. He was ready and willing to compensate the complainant. Considering these factors, I reduce the sentence to time served in custody. To that extent, the appeal is allowed and the appellant is therefore set free unless otherwise lawfully held.
DATED and DELIVERED at MIGORI this 1st day of September 2014.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Owenga, Principal Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.