[2007] KEHC 1699 (KLR)
The court found that obtaining by false pretences is not a minor offence to stealing because both offences carry almost the same sentence. Furthermore, for section 179 of the Criminal Procedure Code to apply, the minor offence must arise from the same transaction as the offence charged, which was not established in...
Source-derived case information.
- Citation
- [2007] KEHC 1699 (KLR)
- Parties
- Appellant: Desta Mutegeki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 105 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be released unless otherwise lawfully held.
- Legal Topics
- Stealing, False Pretences, Lesser Offence, Conviction, Sentencing, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Desta Mutegeki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether obtaining by false pretences is a minor offence to stealing under section 179 of the Criminal Procedure Code.
- 2 Whether the conviction for a lesser offence was proper in the circumstances.
Ratio Decidendi
The court found that obtaining by false pretences is not a minor offence to stealing because both offences carry almost the same sentence. Furthermore, for section 179 of the Criminal Procedure Code to apply, the minor offence must arise from the same transaction as the offence charged, which was not established in this case. Therefore, the conviction for the lesser offence was improper, and the appeal was allowed, quashing the conviction and setting aside the sentence.
Court Disposition
Appeal allowed. Conviction quashed. Sentence set aside. Appellant to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
(From original conviction and sentence in Criminal Case No. 1250 of 2007 of the Chief Magistrate’s Court at Mombasa:
M. OBIERO – R.M.)]
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL 105 OF 2007
DESTA MUTEGEKI…………….……………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………………….RESPONDENT
J U D G E M E N T
The Appellant was charged with the offence of stealing contrary to section 275 of the Penal Code. After trial before the Resident Magistrate at Mombasa he was, pursuant to section 179 of the Criminal Procedure Code, convicted of what the learned trial magistrate called a lesser offence of obtaining by false pretences and sentenced to two years imprisonment. He has appealed against both that conviction and sentence.
In presenting his appeal the Appellant argued that obtaining by false pretences is not a minor offence to stealing as both carry almost the same sentence. Mr. Monda, learned State Counsel, conceded that argument and added, in my view rightly so, that for Section 179 to apply the minor offence must be shown to have arisen from the same transaction as the offence charged. That was not the case here.
In the circumstances I allow this appeal quash the conviction and set aside the sentence. The Appellant shall be released forthwith unless otherwise lawfully held.
DATED and delivered this 18th day of September 2007.
D.K. MARAGA
JUDGE