[2018] KEHC 7851 (KLR)
Although the appellant was a repeat offender and pleaded guilty to the offence of stealing under section 275 of the Penal Code, the sentence of three years' imprisonment imposed by the trial court was manifestly excessive in the circumstances. The appellate court found that the trial court did not sufficiently...
Source-derived case information.
- Citation
- [2018] KEHC 7851 (KLR)
- Parties
- Appellant: Erick Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal Appeal18 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Plea of Guilty, Repeat Offender, Stealing, Penal Code Section 275
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive in the circumstances.
- 2 Whether the trial court properly considered the appellant's mitigation and status as a repeat offender.
Ratio Decidendi
Although the appellant was a repeat offender and pleaded guilty to the offence of stealing under section 275 of the Penal Code, the sentence of three years' imprisonment imposed by the trial court was manifestly excessive in the circumstances. The appellate court found that the trial court did not sufficiently consider the mitigating factors and the circumstances of the offence. Applying established appellate principles, the court determined that interference with the sentence was warranted and reduced the sentence to two years' imprisonment.
Court Disposition
sentence reduced
Orders
- The sentence of three years' imprisonment is set aside and substituted with a sentence of two years' imprisonment.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL APPEAL NO. 18 OF 2017
ERICK ODHIAMBO................APPELLANT
VERSUS
REPUBLIC..............................RESPONDENT
(From the original conviction and sentence in Criminal
Case No.205 of 2017 of theChief Magistrate’s Court at
Busiaby Hon. J.N Maragia– Resident Magistrate)
JUDGMENT
1. ERICK ODHIAMBO the appellant, was convicted after pleading guilty to the offence of stealing contrary to section 275 of the Penal Code.
2. The particulars of the offence were that on 3rd February 2017 at KORINDAG.K Prison Canteen inBUKHAYO WESTLocation of Busia County, stole one mobile phone valued at Kshs. 12,000/= the property of JOSEPH OKOTH ODHIAMBO.
3. He was sentenced to serve three years’ imprisonment. He now appeals against the sentence.
4. The appellant was in person. He contended that the sentence was harsh and excessive and that his mitigation was disregarded.
5. The state opposed the appeal through Mr. Omayo, the learned counsel. He argued that the sentence was lawful considering he was a repeat offender.
6. The facts of the prosecution case were briefly as follows:
On the 3rd February 2017 at about 5 p.m the complainant was at the G.K Busia prison Canteen. When he went to answer a call of nature, he left his phone. On returning, he found the phone missing and the appellant was suspected. A search was mounted. He was traced but the phone was not recovered.
7. He pleaded guilty to the offence.
8. Section 275 of the Penal Code provides as follows:
Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.
He was therefore sentenced to the maximum provided by the law.
9. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of NELSON vs. REPUBLIC [1970] E.A. 599,as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
In the instant case, the appellant was a repeat offender. Although the appellant was a repeat offender, in the circumstances of this case the sentence is manifestly excessive. I will therefore interfere with the sentence and reduce the same to two years’ imprisonment.
DELIVEREDandSIGNEDatBUSIAthis15thdayof March, 2018
KIARIE WAWERU KIARIE
JUDGE