[2004] KEHC 1203 (KLR)
The High Court found that the trial magistrate imposed the maximum sentence for obtaining money by false pretences without giving due consideration to the appellant's mitigation, including his status as a first offender, the non-aggravated nature of the offence, and the low value involved. The appellate court held...
Source-derived case information.
- Citation
- [2004] KEHC 1203 (KLR)
- Parties
- Appellant: David Igunja Kisanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 423 of 2003
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- appeal allowed in part; sentence reduced to period served
- Legal Topics
- Sentencing Principles, Mitigation, Appellate Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Igunja Kisanga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive in the circumstances of the case.
- 2 Whether the trial court failed to consider the appellant's mitigation before sentencing.
Ratio Decidendi
The High Court found that the trial magistrate imposed the maximum sentence for obtaining money by false pretences without giving due consideration to the appellant's mitigation, including his status as a first offender, the non-aggravated nature of the offence, and the low value involved. The appellate court held that these factors warranted a lesser sentence and that the sentence imposed was excessive in the circumstances. Having served half of the sentence and demonstrated remorse, the appellant was deemed to have served sufficient punishment. The court therefore reduced the sentence to the period already served and ordered the appellant's release unless otherwise lawfully held.
Court Disposition
appeal allowed in part; sentence reduced to period served
Orders
- The sentence is reduced to the period already served.
- The appellant shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 423 OF 2003
(From original conviction(s) and Sentence(s) in Criminal case No. 9226 of 2002 of
the Chief Magistrate’s Court at Kibera (Mr. Omosa – R.M.)
DAVID IGUNJA KISANGA…………...….……………………..APPELLANT
VERSUS
REPUBLIC…………………… ………….…………….……....RESPONDENT
J U D G M E N T
The Appellant DAVID IGUNZA KISANGA was charged and convicted of the offence of OBTAINING MONEY BY FALSE PRETENCEScontrary to Section 313 of the Penal Code before the Chief Magistrate’s Court in Kibera. He was sentenced to 3 years imprisonment. Being aggrieved by the decision, he lodged this Appeal.
When the Appeal came up for hearing on 6/12/04, the Appellant informed the Court that he was not challenging the conviction entered against him by the trial Court. However he was challenging only the sentence. He asked the Court to review the sentence by reducing it. He further submitted that he was remorseful for the offence and that he had learnt his lesson. He submitted that he was ready to work as a Community Educator with the Community Service Order. He also said that he had reformed.
MR. MAKURA, the learned counsel for the State, submitted that he had gone through the proceedings and the judgment and realized that the trial magistrate seemed to have disregarded the Appellant’s mitigation. He was of the view that the said failure could explain why the Court gave the maximum sentence provided. He submitted that having served half the sentence, the Appellant could be considered to have learnt his lesson sufficiently. He submitted that he was not opposed to the appellant being considered to have served sufficient sentence.
I have perused the record of the proceedings before the trial Court. I have also considered the submissions by both the Appellant andMR. MAKURA. An appellate can interfere with the trial Courts exercise of discretion only in certain circumstances. In this case it has transpired that the learned trial magistrate meted out the maximum sentence provided in the law for such offence. I see no justification for such exercise of Court’s discretion particularly where the facts and circumstances of the case are given due consideration. It is on record that the Appellant was a first offender. The offence was not aggravated in any way. The value of the items stolen were also a pittance. The learned trial magistrate meted out an excessive sentence in the circumstances of the offence. This Court is therefore, in those circumstances justified to interfere with the sentence. I have particularly considered the fact that the Appellant has served half of his sentence. I have also noted the fact that he appears to be remorseful for the offence
Having considered this Appeal I find that the appellant has served sufficient sentence for the offence he committed. I allow the Appeal by reducing the sentence to the period already served. The appellant should be set at liberty unless he is otherwise lawfully held.
Dated at Nairobi this 8th day of December 2004.
LESIIT
JUDGE