[2005] KEHC 2352 (KLR)
The court held that the trial magistrate exercised proper discretion in sentencing the appellant to two years imprisonment for the offence of cheating under Section 315 of the Penal Code. The magistrate had considered alternative sentencing options, including calling for a probation report, which was unfavorable to...
Source-derived case information.
- Citation
- [2005] KEHC 2352 (KLR)
- Parties
- Appellant: Dismas Simiyu Waswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 123 of 2004
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Cheating Offences, Sentencing Principles, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dismas Simiyu Waswa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of two years imprisonment for the offence of cheating was harsh and excessive.
- 2 Whether the trial magistrate failed to consider alternative sentencing options.
Ratio Decidendi
The court held that the trial magistrate exercised proper discretion in sentencing the appellant to two years imprisonment for the offence of cheating under Section 315 of the Penal Code. The magistrate had considered alternative sentencing options, including calling for a probation report, which was unfavorable to the appellant. Given the appellant's background of repeated involvement in similar offences and the fact that a substantial sum of KES 200,000 was obtained and not recovered, the custodial sentence was justified. The court found no merit in the appeal against sentence and dismissed it.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII Criminal Appeal 123 of 2004
(From original conviction and sentence of the Senior Resident Magistrate’s Court at Kilgoris in Criminal Case No.369 of 2001 –DISMAS SIMIYU WASWA ……………………………………. APPELLANT VERSUS REPUBLIC ………………………………………………………. RESPONDENTJUDGMENT
Appellant was convicted for the offence of cheating contrary to S.315 of The Penal Code. It was alleged that on 15th April 2001 at Moi’s Bridge Town he with others not before the court, by means of fraudulent tricks obtained shs.200,000/- from Martin Ole Kunkun Kipasen. He was sentenced to 2 years imprisonment.
The appeal is against sentence only. The appellant stated that the trial magistrate erred in not considering any other sentencing option. He said sentence of 2 years was harsh and excessive.
I have considered the appeal. It is not true that the trial magistrate did not consider other options. Proceedings show that he first called for a probation report which was not favourable to the appellant. Thus when he was sentencing the appellant he had all the appellants background which indicates that he had been involved in the conning game for sometime.
The appellant obtained shs.200,000/= from the complainant. That money was not recovered. The amount is not small. I feel that the magistrate properly directed himself when he sent the appellant to jail. He clearly stated that he had considered the appellants mitigation which was that he had children in school.
However in the light the unfavourable report from the Probation Officer the magistrate chose to give a custodial sentence. This was proper.
I therefore find the appeal has no merit and the same is dismissed.
Dated 5th May 2005. KABURU BAUNI JUDGE
cc. Mobisa Mr. Kemo for State Appellant in person