[2018] KEHC 1843 (KLR)
The court found that the appellants were first offenders, had pleaded guilty, and had assisted in the recovery of the stolen animals. The trial court considered their mitigation and the prevalence of the offence in the area. However, the appellate court determined that, given the recovery of all stolen animals, the...
Source-derived case information.
- Citation
- [2018] KEHC 1843 (KLR)
- Parties
- Appellant: Dancan Lemishen; Appellant: Ole Napoye Kipindoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Judges
- REA Ougo
- Legal Topics
- Sentencing Principles, Appeal on Sentence, Stock Theft, Mitigation, First Offender, Reduction of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dancan Lemishen
Appellant
Ole Napoye Kipindoi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment for stock theft was manifestly excessive in the circumstances of the case.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court found that the appellants were first offenders, had pleaded guilty, and had assisted in the recovery of the stolen animals. The trial court considered their mitigation and the prevalence of the offence in the area. However, the appellate court determined that, given the recovery of all stolen animals, the appellants' ages, and their status as first offenders, the 7-year sentence was excessive. The court exercised its discretion to reduce the sentence to 5 years for each appellant, holding that the conviction was proper and should stand, but the sentence should be adjusted to reflect the mitigating circumstances.
Court Disposition
sentence reduced
Orders
- The sentence of 7 years imprisonment for each appellant is set aside and substituted with a sentence of 5 years imprisonment for each appellant.
- The conviction is upheld.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL CASE NO. 12 OF 2017
DANCAN LEMISHEN..............................................1ST APPELLANT
OLE NAPOYE KIPINDOI......................................2ND APPELLANT
VERSUS
REPUBLIC....................................................................RESPONDENT
JUDGMENT
1. On the 8th March 2018, Kisii HCRA Nos. 11 & 12 were consolidated. HCCRA No.11 relates to the 2nd appellant Ole Napoye Kipindoi and the HCCRA 12 relates to the 1st appellant Duncan Lemishen. On the 26th July 2016 the 1st and 2nd appellant were charged before the Principal Magistrate’s Court at Kilgoris with the offence of “Stealing Stock contrary to section 278 of the Penal Code. The particulars of the offence are that, “On the 22nd of July 2016 at Ndenge village in Transmara west District of Narok County, jointly with another not before the court stole four heads of cattle valued at Kshs.180, 000/- the property of Jamlick Kisaika. Each pleaded guilty to the charge and after the facts were read to them and they admitted the facts as read, they were each convicted on their own plea of guilty and sentenced to 7 years imprisonment.
2. In their petition of appeal the appellants are not challenging the conviction. Their appeal in on sentence. They claim that the sentence meted on them was excessive. At the hearing of the appeal the 1st appellant asked to have the sentence reduced stating that he is 32 years old and was imprisoned in 2016 for a period of 7 years. The 2nd appellant too requested to have the sentence of 7 years reduced claiming he is 62 years and that he had a family. He promised not to repeat the offence. The prosecution submitted that the appellants pleaded guilty. The plea was clear and unequivocal. That Section 348 of the Criminal Procedure Code stipulates that no appeal lies. That they are not challenging the conviction. The maximum sentence is 14 years imprisonment. That this is a court of equity and the court can using its discretion mete out equitable justice. That the 7 years is sufficient and not excessive as the animals were 4 cows valued at Kshs. 180,000/-
3. This issue in this appeal is only against the sentence. The conviction stands as it was proper. The principles of sentencing are well settled. On appeal the appellate court can only interfere with a sentence pronounced against an appellant if it is shown that the sentencing court overlooked some material factors or took into account some immaterial fact or acted on a wrong principle or that the sentence is manifestly excessive in the circumstances of the case. The record of appeal shows that the appellants are first offenders. The Resident Magistrate considered the appellants mitigation. They sought forgiveness and leniency. The record also shows that the 4 cows which were stolen were recovered after the appellant’s led the police to location of the animals. The trial court noted that the offence of theft of stock in Transmara is prevalent. I note that the appellants upon their arrest led to the recovery of all the animals, the 1st appellant is 32 years old and the 2nd appellant is 62 years. The maximum sentence is 14 years. I also note that they are first offenders and that they did not waste the courts time. Considering all the above I reduce the sentence from 7 years to 5 years for each appellant. The conviction stands as it’s proper.
Dated signed and delivered this 4th day of October2018
R. E. OUGO
JUDGE
In the presence of;
1st& 2nd Appellants in person
Mr Orinda For the State
Rael Court / Clerk