[2009] KEHC 3501 (KLR)
The High Court found that the sentence of 7 years imprisonment with hard labour, being half of the statutory maximum for handling stolen goods, was manifestly harsh and excessive given the items involved and the circumstances of the offence. The court exercised its appellate jurisdiction to interfere with the...
Source-derived case information.
- Citation
- [2009] KEHC 3501 (KLR)
- Parties
- Appellant: Charles Macharia Wambaire; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2007
- Procedural Posture
- Criminal Appeal / Appeal on Sentence Only
- Outcome
- appeal allowed on sentence; sentence reduced to time served; appellant to be released forthwith unless otherwise lawfully held.
- Judges
- MSA Makhandia
- Legal Topics
- Sentencing Principles, Robbery With Violence, Handling Stolen Goods, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Macharia Wambaire
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal on Sentence Only
Legal Issues
- 1 Whether the sentence of 7 years imprisonment with hard labour for handling stolen goods was harsh and excessive.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court found that the sentence of 7 years imprisonment with hard labour, being half of the statutory maximum for handling stolen goods, was manifestly harsh and excessive given the items involved and the circumstances of the offence. The court exercised its appellate jurisdiction to interfere with the sentence, holding that the period already served by the appellant was sufficient to meet the ends of justice. Consequently, the original sentence was set aside and substituted with a sentence equivalent to the time already served, resulting in the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed on sentence; sentence reduced to time served; appellant to be released forthwith unless otherwise lawfully held.
Orders
- The appeal on sentence is allowed.
- The sentence of 7 years imprisonment plus hard labour is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 111 of 2007
CHARLES MACHARIA WAMBAIRE ............... APPELLANT
VERSUS
REPUBLIC ....................................................... RESPONDENT
(Appeal from original Conviction and Sentence in the Chief Magistrate’s Court at Nyeri in Criminal Case No. 2801 of 2005 dated 25th day of September 2006 by M. R. Gitonga – PM)
J U D G M E N T
The appellant was charged with two others with the offence of Robbery with violence contrary to Section 296(2) of the Penal Code as well as alternative count of handling stolen goods contrary to section 322 (1) of the Penal Code before the Chief Magistrate’s Court, Nyeri. He was acquitted after trial of the main count but convicted on the alternative count. Upon conviction as aforesaid, he was sentenced to 7 years imprisonment with hard labour.
The appellant however, appealed to this court against the said conviction and sentence. When the appeal came up for hearing the appellant applied to court to have the appeal proceed only on sentence. In other words, he wished to abandon the appeal on conviction. Mr. Orinda, learned Senior Principal State Counsel not objecting, the appellant’s wish was granted and thereafter the appeal proceeded only on sentence.
The appellant complains that the sentence imposed of 7 years imprisonment plus hard labour was harsh and excessive. That he had since reformed and trained as a carpenter.
Mr. Orinda, learned Senior Principal State Counsel for the respondent did not share the appellant’s concerns with regard to the sentence imposed considering the circumstances of the case. Indeed according to Mr. Orinda, the appellant was even lucky that he got away with that sentence when in fact he ought to have been sentenced to death since the ingredients of robbery with violence had been met.
I have jurisdiction to hear the appeal against sentence in terms of section 354(3) (b) of the Criminal Procedure Code. However I can only interfere with the sentence imposed by the trial court if I am satisfied that in arriving at the sentence, the trial court took into account irrelevant factors, the sentence imposed was illegal or manifestly harsh and excessive as to amount to a miscarriage of justice. See generally, Ogalo s/o Owuor v/s Republic (1954) 19 EACA 270, James v/s Republic (1950) 10 EACA 143, Nilson v/s Republic (1970) EA 599 and Wanjemav/s Republic(1971) EA 493.
The offence charged carries upon conviction a maximum sentence of 14 years. The appellant was however sentenced to 7 years being half of the maximum sentence. I think that considering the items involved and the circumstances of the offence, the sentence imposed appears to be manifestly harsh and excessive. Accordingly I will interfere with the sentence and hold that the sentence already served meets the end of justice. I would then allow the appeal on sentence, set aside the sentence of 7 years imprisonment plus hard labour imposed and substitute therefor with the sentence already served by the appellant. The result is that the appellant shall be released forthwith unless otherwise lawfully held.
Dated and delivered at Nyeri this 3rd day of June 2009
M. S. A. MAKHANDIA
JUDGE