https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8033

Mwololo v Republic (Criminal Appeal E014 of 2025) [2026] KEHC 8033 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8033 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E014 of 2025 NIO Adagi, J June 3, 2026 Between Daniel Maingi Mwololo Appellant and Republic Respondent Judgment 1.The Appellant Daniel Maingi Mwololo was arraigned on 6th February, 2025 before the Chief Magistrate’s Court at Machakos Law Courts charged vide Chief Magistrate’s Criminal Case No. E088 of 2025 with the offence of; stealing contrary to Section 268 (1) as read with section 275 of the Penal Code. 2.The particulars of the charge are that, on diverse dates of November 2024 at Iviani village, Kaewa Sub-Location in Kathiani Sub-county within Machakos County, stole a wet cell battery, a woofer, inverter and extension all valued at Kshs.19,500/= the property of Victor Mulee. 3.In the alternative he was charged with handling stolen goods contrary to Section 322(1) (2) of the Penal Code. 4.He pleaded guilty to the charges. The facts were read out to him and the Appellant admitted that facts were true. The Appellant was convicted on his own plea of guilt. The Prosecution stated that the Appellant was a first offender. In mitigation the Appellant sought for forgiveness. He was sentenced to serve three (3) years imprisonment. 5.The Appellant filed this appeal basically challenging the sentence which he claims to be harsh, excessive, and not commensurate with the circumstances of the offender and the offence. 6.Despite the mitigating factor, the learned trial magistrate imposed the maximum custodial sentence, which is ordinarily reserved for the most serious instances of the offence or repeat offenders. This, the Appellant submit, demonstrates that mitigation was not accorded proper weight and the sentencing discretion was not exercised judicially. 7.The Appellant presented a recommendation letter dated 12th February 2026 signed by Harrison M. Muendo (SP) for Officer In-Charge Machakos Main Prison indicating that while incarceration, the Appellant has taken advantage of the rehabilitation programs offered in prisons and has so far acquired catering skills. He is currently working in Prison Kitchen as a cook. He is well behaved and has not offended against prison discipline which is worth emulating by fellow inmates. He also has the intellectual capability to undertake the said endeavour. 8.The Appellant respectfully prays that the sentence be set aside and substituted with a reduced or non-custodial sentence, or in the alternative, a term equivalent to the period already served. 9.The appeal is opposed by the State and it is submitted that the sentence was legal, proper and in order. The sentence would serve as a retribution and the trial court did not err in law by sentencing the Appellant to 3 years imprisonment as per the law. Thus, the appeal lacks merit and should therefore be dismissed in its entirety. 10.This is a first appeal. The duty of the first appellate court is to reconsider and re-evaluate the evidence before the trial court and make its own conclusions but bearing in mind that it did not see or hear the witnesses (see Okeno –vs- Republic (1972) EA). 11.The Appellant having been convicted on his own plea of guilty, he is only appealing against his sentence of three (3) years which he considers to be was harsh, excessive, and not commensurate with the circumstances of the offender and the offence. 12.Section 348 of the. Criminal Procedure Code provides that one cannot appeal against a conviction on a plea guilt except on account of legality sentence. It provides that:“No appeal shall he allowed in the case of an accused person who has pleaded guilty and has been convicted on •that plea by a subordinate court, except as to the extent or legality of the sentence”. 13.Section 275 of the Penal Code provides that:“Any person who steals anything capable of being stolen, is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years” 14.The offence of stealing contrary to section 268(1) carries a maximum sentence of three years’ imprisonment under Section 275 of the Penal Code. 15.The Appellant is a first offender, he states that he is a young person aged 26 years, he pleaded guilty at first instance, thereby saving judicial time, expressed remorse and asked for forgiveness, the offence involved property of relatively minimal value of (Kshs.19,500/=), there was no violence and no evidence of aggravating circumstances. 16.The Appellant has demonstrated that for the period of one year and three months he has been serving custodial rehabilitation he has been a good citizen and so far, has acquired catering skills. He is currently working in Prison Kitchen as a cook. He is well behaved and has not offended against prison discipline which is worth emulating by fellow inmates. He also has the intellectual capability to undertake the said endeavour. This clearly shows that the Appellant is able to fend for himself legally without resorting to enjoying the sweat of other members of the society by stealing. 17.The upshot is that, this court finds that in the circumstances of this case, the custodial sentence already served by the Appellant is adequate punishment. 18.Accordingly, the Appellant shall forthwith be released from prison unless otherwise lawfully held. 19.It is so ordered. This file is closed. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 3RD JUNE 2026NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD JUNE 2026In the presence of :-Appellant at Machakos Main PrisonMs. Agatha Abang-Prosecution CounselMilly- Court Assistant