[2017] KEHC 1933 (KLR)
The appellate court found that although the appellant was convicted of stealing a motor vehicle and breached the trust of his employer, he was a first time offender. The trial court had imposed a sentence of 5 years, which the appellate court considered excessive in the circumstances, as it was more than half the...
Source-derived case information.
- Citation
- [2017] KEHC 1933 (KLR)
- Parties
- Appellant: Charles Mwangi Muhia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, Stealing Motor Vehicle, First Offender, Breach of Trust
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mwangi Muhia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive given the appellant was a first time offender.
- 2 Whether the appellate court should interfere with the trial court's exercise of discretion in sentencing.
Ratio Decidendi
The appellate court found that although the appellant was convicted of stealing a motor vehicle and breached the trust of his employer, he was a first time offender. The trial court had imposed a sentence of 5 years, which the appellate court considered excessive in the circumstances, as it was more than half the statutory maximum. The appellate court held that the sentence should be reduced to 3 years, considering the appellant's status as a first offender and the principles governing appellate interference with sentencing discretion. The appeal was allowed to the extent of reducing the sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 5 years imprisonment is set aside.
- The appellant is sentenced to serve 3 years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO. 17 OF 2016
CHARLES MWANGI MUHIA ……...............................…. APPELLANT
versus
REPUBLIC ……………....……….....…....………..…....…. RESPONDENT
(Being an appeal from the original conviction and sentence in NanyukiChief Magistrate’s Court Criminal Case No. 226 of 2013 by Hon. E. BETTSenior Resident Magistrate on 23rd August 2017).
JUDGMENT
1. CHARLES MWANGI MUHIA the appellant herein was charged before the Nanyuki Chief Magistrate’s Court with the offence of stealing a motor vehicle contrary to section 278 (a) of the Penal Code. On being convicted following his trial he was sentenced to serve 7 years imprisonment. He is aggrieved by that sentence and accordingly has appealed against the same.
2. The facts relating to this case are that the appellant was an employee of Ol Pajeta ranch at its garage. He was responsible for the repair of motor cycles belonging to his employer. It is in that capacity that he was given motorcycle registration number KMCP 718 M. He was requested to carry out repairs on that motorcycle. The motorcycle was handled to him on 12th March 2013. The witnesses who testified before court stated that he failed to surrender back the motorcycle. indeed he absconded on his duties until his arrest on 26th March 2013.
3. In his submission in support of this appeal he submitted that he was a first time offender. That he has obtained a skill at prison which skill will assist him when he is released. He stated that he is a family man with a young family. Finally he said that he was remorseful and reformed.
4. I have considered the appellant’s submissions. It is important to state that the motorcycle of his employer was never recovered. Accordingly his employer lost the use of that motorcycle. The appellant was in a place of trust. His employer had entrusted him to take care of its property. He breached that trust and the trial court was right in giving him a custodial sentence.
5. In the case of SHADRACK KIPCHOGE KOGO V REPUBLIC [2015]eKLR the Court of Appeal held that sentencing is at the discretion of the trial court. That that discretion can only be interfered with if that court took into account any irrelevant factor or applied the wrong principle when sentencing. The appellant court can also interfere where the sentence is either harsh or excessive.
6. Under section 278 A of the Penal Code, the maximum sentence is 7 years. The trial court sentenced the appellant to 5 years. In sentencing the appellant to 5 years the court had been informed the appellant was a first time offender. In this court’s view the sentence of five years which is more than half the sentence provided under section 278 A was excessive since appellant was a first time offender. It is because of that that this court is entitled to interfere with that sentence.
7. The upshot of this is that the sentence of the appellant is hereby set aside. The appellant is hereby sentence to serve 3 years from the date of his conviction. To that extent the appellant’s appeal succeeds.
DATED and DELIVERED at NANYUKI this 29th day of NOVEMBER 2017
MARY KASANGO
JUDGE
CORAM
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
Appellant: Charles Mwangi Muhia …………..…………………………..
For the State: …..................................................................
Language: ……………………………………….………………………..……..
COURT
Judgment delivered in open court.
MARY KASANGO
JUDGE