[2010] KEHC 843 (KLR)
The court found that although the sentence of 7 years imprisonment was within the statutory maximums for the offences charged, the trial magistrate failed to specify whether the sentence was for the breaking or stealing limb. Considering the appellant's mitigation, the value of the stolen goods, and the period...
Source-derived case information.
- Citation
- [2010] KEHC 843 (KLR)
- Parties
- Appellant: Evans Mokaya Motanya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 289 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced; appellant to be released immediately unless otherwise lawfully held
- Legal Topics
- Sentencing Principles, Shop Breaking, Stealing, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Mokaya Motanya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment imposed on the appellant was harsh or excessive in the circumstances.
- 2 Whether the trial magistrate erred by not specifying which limb of the offence the sentence related to.
- 3 Whether the appellant's mitigation and period already served warranted reduction of sentence.
Ratio Decidendi
The court found that although the sentence of 7 years imprisonment was within the statutory maximums for the offences charged, the trial magistrate failed to specify whether the sentence was for the breaking or stealing limb. Considering the appellant's mitigation, the value of the stolen goods, and the period already served since 11th September 2009, the court determined that a reduction of sentence was warranted to secure the appellant's immediate release.
Court Disposition
sentence reduced; appellant to be released immediately unless otherwise lawfully held
Orders
- The appellant's sentence is reduced to a term securing his immediate release.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 289 OF 2009
EVANS MOKAYA MOTANYA...................................................APPELLANT
VERSUS
REPUBLIC...............................................................................RESPONDENT
JUDGMENT
EVANS MOKAYA MOTANYA, the appellant, was upon his own plea of guilty to a charge of shop breaking and stealing contrary to Sections 304(1) and 279(b) respectively of the Penal Codeconvicted and sentenced to 7 years imprisonment. He has appealed against that sentence.
In his submissions before me the appellant pleaded for leniency and the reduction of his sentence. He said he is an orphan who is taking care of his siblings. Mr. Nyakundi for the state observed that the sentence of 7 years imprisonment in the circumstances of this case cannot be said to be harsh but left the matter to me.
Section 304(1) of the Penal Code provides for the maximum sentence of 7 years imprisonment for the first limb of the offence while Section 279(b) of the Penal Code provides for a maximum sentence of 14 years imprisonment for the second limb of the offence. Mr. Nyakundi is therefore right in saying that the sentence of 7 years imprisonment is not harsh if he only had in mind the second limb of the offence. I note from the record, however, that the trial magistrate did not specify whether the 7 years imprisonment was for the breaking or stealing limb of the offence.
Having considered the appellant’s plea in mitigation, and the value of the stolen goods as well as the fact that he has been incarcerated since 11th September 2009, I reduce his sentence to such a term as will secure his immediate release. The appellant shall therefore be released forthwith unless otherwise lawfully held.
DATED and DELIVERED this 18th day of June, 2010.
D. K. MARAGA
JUDGE.