[2018] KEHC 5452 (KLR)
The court held that imposing the maximum sentence on a first offender, especially where the stolen property was recovered and the offender expressed remorse, constitutes an error of principle. The trial magistrate failed to give due weight to these mitigating factors. As a result, the sentence was deemed harsh and...
Source-derived case information.
- Citation
- [2018] KEHC 5452 (KLR)
- Parties
- Appellant: Charles Mose Bikeri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 50 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence reduced to time served; appellant released unless otherwise lawfully held
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, First Offender, Stealing From Locked Room
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mose Bikeri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was harsh and excessive for a first offender convicted of stealing from a locked room.
- 2 Whether the trial court erred in imposing the maximum sentence despite mitigating circumstances.
Ratio Decidendi
The court held that imposing the maximum sentence on a first offender, especially where the stolen property was recovered and the offender expressed remorse, constitutes an error of principle. The trial magistrate failed to give due weight to these mitigating factors. As a result, the sentence was deemed harsh and excessive. The appellate court therefore allowed the appeal on sentence and reduced the sentence to time served, ordering the appellant's release unless otherwise lawfully held.
Court Disposition
appeal allowed; sentence reduced to time served; appellant released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The sentence is reduced to time served.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 50 OF 2015
CHARLES MOSE BIKERI.....................................................APPELLANT
VERSUS
REPUBLIC...........................................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. N. Kahara – RM dated 12th June, 2015 at the Principal Magistrate’s Court at Keroka in Criminal Case No. 405 of 2014)
JUDGMENT
1. This is an appeal against the sentence imposed on the appellant, CHARLES MOSE BIKERI who was charged and convicted of the offence of stealing from a locked room contrary to section 279(g) of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offence were that on the night of 15th – 16th April 2014, in Keroka Police Line in Masaba North District within Nyamira County, he stole cash Kshs. 50,000/=, a radio make Konchan, two bed covers all valued at Kshs. 51,000/= the property of Joseph Kiprop and in order to commit such offence opened a locked room with a key.
2. The appellant was sentenced to twelve years 10 months imprisonment after the trial magistrate took into account the fact that he had been in pre-trial custody for a period of 14 months. In effect, the appellant was given the maximum sentence under section 279 of the Penal Code.
3. It is an error of principle to sentence an accused to the maximum sentence upon commission of the first offence (see Josephine Arrisol v. R [1957] EA 447). It was not disputed that he was a first offender, the stolen properties were recovered and the appellant expressed remorse. In light of the circumstances, the sentence was harsh and excessive. I therefore allow the appeal and reduce the sentence to time served. The appellant is released unless otherwise lawfully held.
Dated and delivered at Kisii this 12th day of July 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.