[2011] KEHC 331 (KLR)
The court found that the appellant, having pleaded guilty and being a first offender, was appropriately sentenced to four years imprisonment, which is below the statutory maximum of seven years for the offence. However, considering the appellant had already served two years and in the interest of rehabilitation, the...
Source-derived case information.
- Citation
- [2011] KEHC 331 (KLR)
- Parties
- Appellant: Cyrus Mwangi Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 325 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Probation officer to investigate suitability for community service order; further orders pending report.
- Judges
- RPV Wendoh
- Legal Topics
- Breaking and Entering, Sentencing Principles, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Mwangi Ndungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive or warranted in the circumstances.
- 2 Whether the appellant, as a first offender, should benefit from leniency or alternative sentencing.
Ratio Decidendi
The court found that the appellant, having pleaded guilty and being a first offender, was appropriately sentenced to four years imprisonment, which is below the statutory maximum of seven years for the offence. However, considering the appellant had already served two years and in the interest of rehabilitation, the court exercised its discretion to order a probation officer's report to assess the suitability of placing the appellant on community service for the remainder of his sentence. The court balanced the need for deterrence, the lack of recovery of most stolen goods, and the appellant's plea for leniency in reaching its decision.
Court Disposition
Probation officer to investigate suitability for community service order; further orders pending report.
Orders
- A probation officer shall investigate the suitability of the appellant being placed on community service order for the balance of the sentence.
- A report shall be made by the probation officer and the case mentioned for further orders.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 325 OF 2009
(From original conviction and sentence in Criminal Case No. 6468 of 2009 in the Chief Magistrate’s Court at Nakuru – B. KITUYI,RM)
CYRUS MWANGI NDUNGU…………....……………....APPELLANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
JUDGMENT
The Appellant herein is Cyrus Mwangi Ndungu. He was charged jointly with 2 others before Mrs. Juma, Chief Magistrate, with the offence of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code. It was alleged that on 8/11/2009 at Lake Nakuru National Park, they broke and entered into a building, a guest house of World Wide Fund Organization and stole the things listed in the charge sheet.
When they were arraigned before the court on 17/11/2009, the Appellant, then 2nd Accused, pleaded guilty to the charge and was sentenced to 4 years imprisonment. The case proceeded to hearing in respect of the other Accused persons. Although in his petition of appeal the appellant was seeking to have the conviction quashed, in his submissions in court, he only pleads that the court do forgive him because he has changed and that the court be lenient to him.
Mr. Omari, learned counsel for the State urged the court not to interfere with the sentence because it is lenient.
The prosecution did not have any previous criminal records in respect of the Appellant. In sentencing him, the court acknowledged the fact that the Appellant was treated as a first offender but that most of the stolen goods were not recovered and preferred a deterrent sentence of 4 years imprisonment. Section 306(a) of the Penal Code provides for a maximum sentence of 7 years. So far, the Appellant has served 2 years imprisonment. In exercise of its discretion, this court hereby orders that a Probation Officer do investigate the suitability of the Appellant being placed on C.S.O. for the balance of the sentence. A report be made by the Probation Officer and the case be mentioned for further orders.
It is so ordered.
DATEDand DELIVERED this 26th day of October, 2011.
R. P. V. WENDOH
JUDGE
PRESENT:
Appellant in person present
Mr. Omari for State
Court Clerk - Kennedy