[2004] KEHC 409 (KLR)
The court found that the sentence of two strokes of the cane was unlawful due to statutory amendment outlawing corporal punishment. The court also determined that, as the appellant was a first offender, pleaded guilty, and the stolen animals were recovered, the consecutive sentences totaling five years were...
Source-derived case information.
- Citation
- [2004] KEHC 409 (KLR)
- Parties
- Appellant: Dominic Chimbi Wanyama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- ? 32 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Theft of Stock, Sentencing, First Offender, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Chimbi Wanyama
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive given he was a first offender and pleaded guilty.
- 2 Whether the sentence of strokes of the cane was lawful after the amendment outlawing corporal punishment.
- 3 Whether the sentences should run concurrently or consecutively.
Ratio Decidendi
The court found that the sentence of two strokes of the cane was unlawful due to statutory amendment outlawing corporal punishment. The court also determined that, as the appellant was a first offender, pleaded guilty, and the stolen animals were recovered, the consecutive sentences totaling five years were excessive. Exercising its discretion under section 354 of the Criminal Procedure Code, the court ordered the sentences to run concurrently, resulting in an aggregate sentence of three years imprisonment, and quashed the corporal punishment sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The consecutive prison sentences are converted to concurrent sentences, resulting in an aggregate of 3 years imprisonment.
- The sentence of two strokes of the cane is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT KITALE.
CRIMINAL APPEAL NO. 32 OF 2003.
DOMINIC CHIMBI WANYAMA :::::::::::::::::::::::::::::: APPELLANT.
VERSUS
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.
J UD G M E N T.
The appellant was charged before the Resident Magistrate at Kapenguria with two counts of theft of stock contrary to section 278 of the Penal Code and in the alternative with two counts of handling stolen property contrary to section 322 (2) of the penal code. In the first substantive count appellant was charged with stealing five donkeys valued at Ksh. 15,000/= and in the second substantive count he was charged with stealing three donkeys valued at Ksh. 9,000/=. He pleaded guilty to the substantive charges and was sentenced to 3 years imprisonment on count one, and 2 years imprisonment on count two. The sentences to run concurrently thus totaling a prison term of 5 years. He was also sentenced to receive two strokes of the cane. He was sentenced on 12th March, 2003.
He has appealed to this court against sentence in the ground that he is a first offender, that he pleaded guilty to the charges; and that he has a father, children and brothers who depend on him. He has asked for a reduction of the sentence.
Learned State Counsel Ms. Oundo submitted that the sentence of strokes of the cane is now illegal due to an amendment to the law and that the sentence totaling 5 years imprisonment was excessive as the stolen animals were recovered. She asked the court to exercise its discretion under section 354 of the Criminal Procedure Code (cap 75. )
I take note of the fact that the appellant is a first offender and he pleaded guilty to the two counts. Also, according to the facts of the case as narrated by the prosecutor, the stolen animals were actually recovered.Having considered the circumstances of this case, I am inclined to exercise my discretion in terms of section 354 of the Criminal Procedure Code on the sentence of imprisonment. I am of the view that the consecutive sentence is excessive. I therefore make the prison sentences to run concurrently, resulting in an aggregate sentence of 3 years imprisonment. As the sentence of strokes of the cane has been outlawed, I quash the sentence of two strokes of the cane.
In the result therefore I allow this appeal in part and convert the consecutive prison term to a concurrent prison term and quash the sentence of two strokes of the cane. The appellant will therefore serve a prison sentence of an aggregate of 3 years imprisonment.
Dated and delivered at Kitale this ………………….. day of …………………………. 2004.
GEORGE DULU.
JUDGE.
Read in the presence of: