[2007] KEHC 3572 (KLR)
The court found that although the sentence imposed was within the statutory maximum, the trial magistrate failed to sufficiently consider the appellants' status as first offenders, their plea of guilty, and the recovery of the stolen money. The imposition of the maximum sentence was deemed harsh in the...
Source-derived case information.
- Citation
- [2007] KEHC 3572 (KLR)
- Parties
- Appellant: Diana Isaliku Memba; Appellant: Jane Emungu Emumbusa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 603 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- CJ Kendagor
- Legal Topics
- Sentencing Principles, Plea of Guilty, Mitigation, First Offender, Maximum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diana Isaliku Memba
Appellant
Jane Emungu Emumbusa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 3 years imprisonment imposed on the appellants for stealing was harsh and excessive in the circumstances.
- 2 Whether the trial court properly considered the appellants' mitigation and plea of guilty.
Ratio Decidendi
The court found that although the sentence imposed was within the statutory maximum, the trial magistrate failed to sufficiently consider the appellants' status as first offenders, their plea of guilty, and the recovery of the stolen money. The imposition of the maximum sentence was deemed harsh in the circumstances, particularly given the appellants' remorse and cooperation. The appellate court therefore set aside the 3-year sentence and substituted it with a sentence of 18 months imprisonment for each appellant, effective from the date of the original sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 3 years imprisonment is set aside.
- Each appellant is sentenced to 18 months imprisonment from the date of the original sentence in the lower court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 603 of 2005
(From original conviction (s) and Sentence(s) in Criminal Case No. 5750 of 2005 of the Chief Magistrate’s Court at Makadara (J. Gandani - SRM)
DIANA ISALIKU MEMBA….…………………..……....……..APPELLANT
VERSUS
REPUBLIC………………… ………………………….…....RESPONDENT
CONSOLIDATED WITH
605 OF 2005
(From original conviction (s) and Sentence(s) in Criminal Case No. 5750 of 2005 of the Chief Magistrate’s Court at Makadara (J. Gandani - SRM)
JANE EMUNGU EMUMBUSA…………………….......……..APPELLANT
VERSUS
REPUBLIC………………… ………………………….…....RESPONDENT
J U D G M E N T
DIANA ISALIKU MEMBAandJANE EMUNGU EMUMBUSA were convicted on their own plea of guilty to a charge of STEALINGcontrary to Section 275 of the Penal Code. They were each sentenced to 3 years imprisonment. They now challenge the sentence imposed by the learned trial magistrate against them.
The 1st Appellant in her submission challenges the sentence for being harsh on the basis that her children had since scattered following her imprisonment. That the money she stole was recovered from her. The 2nd Appellant urged the court to forgive her. The 2nd Appellant also said that the Kshs.83,000/- recovered in the case was recovered from both of them.
Mr. Makura learned Counsel for the State opposed the appeal on sentence. Counsel submitted that the sentence of 3 years imprisonment was within the law and that before passing that sentence, the trial court considered the Appellants’ mitigation. He urged the court to dismiss the appeal since a substantial sum of money was lost.
I have considered this appeal. The maximum sentence for the offence of stealing contrary to Section 275 of the Penal Code is 3 years imprisonment. I have considered that the Appellants were first offenders and that they pleaded guilty to the charge. Having saved court’s time and having proved their remorsefulness by pleading guilty to the charges, the learned trial magistrate was harsh to impose the maximum penalty to the charge in all the circumstances of the case.
I will allow the appeal against sentence by setting aside the sentence of 3 years imprisonment and in substitution thereof, I order a sentence of 18 months imprisonment against each Appellant from the date of the original sentence in the lower court.
Dated at Nairobi this 7th day of February 2007.
…………………..
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of;
Both Appellants - present
Mr. Makura for the State
Tabitha: CC
……………….……
LESIIT, J.
JUDGE