[2014] KEHC 7105 (KLR)
The court found that although the appellant was a repeat offender, the sentence of eight years imprisonment for burglary and stealing, where the value of the stolen property was Ksh. 1,200, was harsh and excessive. The court exercised its discretion to reduce the sentence to four years imprisonment on each count, to...
Source-derived case information.
- Citation
- [2014] KEHC 7105 (KLR)
- Parties
- Appellant: Daniel Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appeal partially allowed
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Principles, Burglary, Repeat Offender, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mutua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of eight years imprisonment for burglary and stealing was excessive in the circumstances of the case.
- 2 Whether mitigation and previous convictions were properly considered in sentencing.
Ratio Decidendi
The court found that although the appellant was a repeat offender, the sentence of eight years imprisonment for burglary and stealing, where the value of the stolen property was Ksh. 1,200, was harsh and excessive. The court exercised its discretion to reduce the sentence to four years imprisonment on each count, to run concurrently, holding that proportionality and fairness in sentencing must be maintained even for repeat offenders. The appeal was allowed to the extent of the sentence reduction.
Court Disposition
sentence reduced; appeal partially allowed
Orders
- The sentence of eight years imprisonment on each limb is reduced to four years imprisonment on each of the two limbs.
- The sentences are to run concurrently.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 114 OF 2011
DANIEL MUTUA …......….....................................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 96 of 2010 of the Senior Resident Magistrate's Court at Taveta – Hon. Ndegwa - SRM)
JUDGMENT
The Appellant herein was Convicted and Sentenced to Eight (8) years imprisonment for the offence of burglary and stealing contrary to section 304 (2) and 279 (b) of the Penal Code.
The particulars being that on the night of 7th day of March and 8th March, 2010 at unknown time in Bahati Village within Taita-Taveta County, jointly with others not before the Court broke and entered the dwelling house of Meshack Biwott with intent to steal therein and did steal therein a plastic stand, 5 plates, 2 cups, 3 aluminium sufurias, a pair of slippers and 500 grammes white toss the property of Meshack Biwott all of the value of Ksh, 1,200/=.
His grounds of appeal are largely on the issue of Sentence. His submissions are based on mitigation factors.
The appellant was not a first offender. He admitted two previous Conviction for the offences of house breaking and stealing in which he was Sentenced to two years imprisonment. In the present case he was Sentenced to Eight (8) years imprisonment for burglary and stealing which carries a maximum Sentence of Ten (10) years.
I find in the circumstances of this case where the value of the property was Ksh. 1,200/= the Sentence of Eight (8) years imprisonment is harsh even for a repeat offender.
The Sentence of Eight years imprisonment on each limb is reduced to Four (4) years imprisonment on each of the two limbs. The Sentence to run concurrently. The appeal succeeds to that extent only.
Judgment delivered dated and signed this 13th day of February, 2014.
…..................
M. MUYA
JUDGE
13TH FEBRUARY, 2014
In the presence of:-
Learned State counsel Miss Mwaura
The Appellant present
Court clerk Musundi