[2013] KEHC 431 (KLR)
The High Court found that the trial magistrate had sentenced the appellant within the statutory maximum for the offence of stealing from the person. However, the appellate court took into account the appellant's personal circumstances, including his health, his role as the sole caregiver for his ailing mother, the...
Source-derived case information.
- Citation
- [2013] KEHC 431 (KLR)
- Parties
- Appellant: Clement Mariko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 103 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- L Waithaka
- Legal Topics
- Sentencing Principles, Plea of Guilty, Mitigation Factors, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Mariko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant, who pleaded guilty to stealing from the person, was excessive or warranted reconsideration.
- 2 Whether the trial court properly considered the appellant's mitigation and personal circumstances in sentencing.
Ratio Decidendi
The High Court found that the trial magistrate had sentenced the appellant within the statutory maximum for the offence of stealing from the person. However, the appellate court took into account the appellant's personal circumstances, including his health, his role as the sole caregiver for his ailing mother, the fact that he had already served one year and six months of his sentence, and the potential for family reconciliation. The court exercised its discretion to reduce the sentence to the period already served, finding that further incarceration was not warranted given the mitigating factors and the interests of justice.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal against sentence is allowed to the extent that the appellant is sentenced to the term already served.
- The appellant is released from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
HCRA NO .103 OF 2012
CLEMENT MARIKO ……………..……………..APPELLANT
VERSUS
REPUBLIC ...…………….………….………….RESPONDENT
(Being an appeal from original conviction and sentence in Narok C.M Criminal Case No.578 of 2012 byHon C A Nyakundi, P.M dated 2nd May 2012)
J U D G E M E N T
1. The appellant was charged with stealing from the person of another contrary tosection 279 (a) of the penal Code.
2. He pleaded guilty to the offence and was convicted. The appellant admitted to these facts but said in mitigation that the complainant was his wife and his mother was sick.
3. He was sentenced to 3 years imprisonment.
4. Under section 348 of the criminal procedure code, a person who pleads guilty and is convicted and sentenced on his own plea of guilty, can only appeal on grounds of either legality or extent of sentence. The appellant appears to be aware of this, as his grounds of appeal are only on mitigation
GROUNDS OF APPEAL
5. (i) The appellant pleaded guilty to the charge.
The court failed to consider his health status. He had suffered from epilepsy since 1996 and his condition is worsening.
The appellant is and only child and the one caring for his mother who sustained spinal injuries during the post-election violence in 2008.
(iv) That the appellant committed the offence under the influence of alcohol and is remorseful.
That the lower court did not consider a non-custodial sentence over the three (3) years of imprisonment.
The conviction and sentence was unconstitutional as the offence committed was aimed at reconciling the family.
That the appellant is a first offender.
ISSUE FOR DETERMINATION
6(i) Sentence
ANALYSIS
7. In his petition for appeal, all that is contained therein is mitigation as to why the court should reconsider the sentence and be lenient to him. Mr Marete, counsel who appeared for the state did not oppose the appeal on sentence. The appellant had been convicted of stealing from his wife and he was of the opinion that the sentence was too harsh even if the maximum sentence under section 279(a) of the penal code was 14 years imprisonment. He urged the court to consider a custodial sentence in place of the three years imprisonment.
FINDINGS
8. The trial Magistrate reached a correct finding and sentenced the appellant within the stipulated period under the penal code of 14 years maximum imprisonment period.
I have however taken into consideration that the Appellant has served a period of 1 year 6 months upto October 2013 and is left with about one and a half years if he is granted remission.
The appellant stole from his wife. They have children together and his mother is unwell. The presence of the appellant at home will be good for his children and his ailing mother and hopefully he will be able to reconcile with his wife. This court will exercise it’s discretion and sentence the appellant to the term already served.
CONCLUSION
The appeal against sentence is allowed to that extent and the appellant is released from prison forthwith unless otherwise lawfully held.
Dated signed and delivered this 8th day of November 2013.
L N WAITHAKA
JUDGE
PRESENT
Mr Marete for the state
Appellants: Clement Mariko
Emmanuel Maelo: Court Clerk.
L N WAITHAKA
JUDGE