[2017] KEHC 1840 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL 161 OF 2015

DANIEL KYALO……..……..……………………....................…………………....……………..…APPELLANT

VERSUS

REPUBLIC…………………..……………………............……………………..…………………RESPONDENT

(An appeal arising out of the sentence of Hon. C. A. Ocharo PM in CriminalCaseNo. 1499 of 2015, delivered on 2nd October 2015 at the Chief Magistrate’s Court at Machakos)

JUDGMENT

The Appellant was charged with, and convicted of stealing stock contrary to section 278 of the Penal Code on his own plea of guilty. The particulars were that on 17th September 2015 at Masaani village in Kalama location within Machakos County, he stole one goat valued at Kshs 5,000/=, the property of Nicholas Musyoki Kyengo. He was sentenced to serve seven (7) years imprisonment for the offence.

The Appellant subsequently preferred this appeal against the sentence only, as stated in the Petition and Memorandum of Appeal he filed in Court on 26th October 2017, wherein he states that he is a first offender, had learnt his lesson and the value of honesty and patience. Further, that he is remorseful and regrets his actions, and he sought to be accorded a second chance through a community service order or any other non-custodial sentence, or that the Court treats the time he has served as enough punishment.

During the hearing of the appeal on 10th October 2017, the Appellant orally submitted that he was seeking a reduction of his sentence or that he be set free. Ms. Rono, the learned Prosecution counsel submitted orally that section 278 of the Penal Code stipulates that the sentence for the offence of stealing stock is not less than 14 years. That the trial Court was therefore lenient in imposing half of the sentence provided for, and that the probation report in the trial Court showed that the Appellant had a previous record.

I have considered the Appellant’s mitigation and the submissions by the Prosecution. The issues for determination by this court are whether the sentence meted out to the Appellant is illegal or unlawful, harsh or excessive as provided for under the Penal Code or in any other statute, and whether the said sentence is amenable to reduction and /or variation.

Section 354 (3) (b) of the Criminal Procedure Code provides as follows on the powers of the Court on an appeal on sentence as follows:-

“ In an appeal against sentence, the court may increase or reduce the sentence or alter the nature of the sentence”.

The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case of Ogolla s/o Owuor vs R, (1954) EACA 270 wherein the Court of Appeal stated as follows:

"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)."

In the instant appeal, the Appellant was charged with, and convicted of the offence of stealing stock contrary to section 278 of the Penal Code. Section 278 of the Penal Code provides as follows in this regard:

“If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years..”

The sentence of seven (7) years imprisonment meted on the Appellant was therefore lawful to the extent that it is provided for by the said provisions of the Penal Code.

I have also perused the Probation Officer’s report 15th October 2015 that was filed in the trial Court, and note that the Appellant had been previously been convicted of a similar offence, and had been sentenced to serve community service orders but absconded. A non-custodial sentence is thus not appropriate for the Appellant.

I am however of the view that given that the Appellant was convicted of stealing one goat valued at Kshs 5000/=, the sentence of seven years imprisonment while lawful, was excessively harsh in the circumstances taking into account the value of the stock stolen. Lastly, I note that the Appellant was convicted on 2nd October 2015 and has already served two (2) years of his sentence.

Arising from the foregoing reasons, the Appellant’s conviction for stealing stock contrary to section 278 of the Penal Code is accordingly upheld, however the sentence of seven (7) years imprisonment for this conviction is set aside and substituted with a sentence of three (3) years imprisonment, which is to run from the date of the Appellant’s conviction by the trial Court

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF NOVEMBER 2017.

P. NYAMWEYA

JUDGE