[2017] KEHC 4479 (KLR)
The High Court found that the trial court had properly exercised its discretion in sentencing the appellant to two years imprisonment. The trial court considered the appellant's status as a first offender, his family circumstances, and the recovery of the stolen ultrasound machine. However, the court also weighed...
Source-derived case information.
- Citation
- [2017] KEHC 4479 (KLR)
- Parties
- Appellant: Elijah Kariuki Karoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Discretion, Custodial Vs Non Custodial Sentence, Public Trust Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elijah Kariuki Karoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in imposing a custodial sentence instead of a non-custodial sentence on a first offender.
- 2 Whether the trial court properly exercised its sentencing discretion under section 28(1)(b) of the Penal Code.
- 3 Whether the recovery of the stolen property and the appellant's personal circumstances warranted a lesser sentence.
Ratio Decidendi
The High Court found that the trial court had properly exercised its discretion in sentencing the appellant to two years imprisonment. The trial court considered the appellant's status as a first offender, his family circumstances, and the recovery of the stolen ultrasound machine. However, the court also weighed the seriousness of the offence, the value and public importance of the stolen property, and the appellant's breach of public trust as a public servant. The need for deterrence and protection of public property justified the custodial sentence. No error of law or fact was found in the trial court's decision, and thus the appellate court declined to interfere with the sentence...
Court Disposition
appeal dismissed
Orders
- The appeal against the sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL APPEAL NO. 31 OF 2016
[Being from the original conviction and sentence in Criminal Case No. 66 of 2014 in the Chief Magistrate’ Court at Narok, R. v. Elijah Kariuki ]
ELIJAH KARIUKI KAROKI ………………………………APPELLANT
VERSUS
REPUBLIC …...……………………………………....…RESPONDENT
JUDGEMENT
1. The appellant has appealed against a 2 year imprisonment sentence in respect of the offence of breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code (Cap. 63) Laws of Kenya, which charged him along with his co-accused of stealing an ultrasound scanning machine valued at Ksh.2 million, the property of Narok district hospital.
2. In his amended petition of appeal to this court, he has raised 6 grounds. In ground 1, he has stated the unchallengeable fact that he is a first offender. In ground 2, he has faulted the trial court in failing to consider a non-custodial sentence. In this regard the trial court in sentencing the appellant, took into account the mitigation of the appellant that he was a first offender and that his wife was unemployed. It also took into account that he had 3 children and the he was the sole breadwinner. It also took into account his plea for leniency and applied that a non-custodial sentence be imposed. And finally, he also urged the court to consider that the stolen machine had been recovered.
3. Furthermore, the court pointed out that the machine that was stolen was intended for diagnosis of various problems faced by members of the public and it was not a cheap machine. The court went further and found that the machine was recovered and proceeded to add that the appellant should not be left to work in a hospital where the facilities can be in danger of getting lost. The court also went further and found that it was necessary to discourage such theft by imposing a deterrent sentence and that is how a sentence of 2 years was imposed in order to protect the rights of the public. The maximum sentence provided for this offence is 7 years imprisonment in terms of section 306 (a) of the Penal Code.
4. Sentencing is a matter for the discretion of the trial court. This is clear from the provisions of section 28 (1) (b) of the Penal Code. In terms of those provisions, the court is given a discretion in imposing either a fine or a term of imprisonment.
In the instant appeal, the court opted to impose a custodial sentence. It took into account all the relevant matters namely that the appellant was a first offender, that he was a sole breadwinner of a young family with 3 children. It also took into account that the stolen machine was of a diagnostic nature upon which ailing members of the public dependent. I have considered all this matters and I find that the appellant was a public servant and in stealing the ultrasound machine he betrayed the public trust. In the circumstances, I find no error or law or fact that was committed by the trial court in sentencing the appellant. In the circumstances, this court cannot interfere with the discretion of the trial court.
6. The upshot of the foregoing is that the appeal against the sentence is hereby dismissed.
Judgement delivered in open court this 19th day of June, 2017 in the presence of Appellant and Mr. Mukofu for Respondent.
J. M. Bwonwonga
Judge
19/6/2017