[2010] KEHC 2001 (KLR)
The court found that the five-year sentence imposed on the appellant, who was a first offender and had the stolen money recovered, was harsh and excessive. The court concurred with the State's concession that the sentence should be reduced to the period already served, emphasizing that sentencing should be...
Source-derived case information.
- Citation
- [2010] KEHC 2001 (KLR)
- Parties
- Appellant: Franklin Furaha Gachory; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 144 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DO Ohungo
- Legal Topics
- Sentencing Principles, Burglary, First Offender, Mitigation, Recovery of Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franklin Furaha Gachory
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the five-year sentence imposed on the appellant was harsh and excessive in light of the circumstances.
- 2 Whether the fact that the appellant was a first offender and the stolen money was recovered warranted a reduction of sentence.
Ratio Decidendi
The court found that the five-year sentence imposed on the appellant, who was a first offender and had the stolen money recovered, was harsh and excessive. The court concurred with the State's concession that the sentence should be reduced to the period already served, emphasizing that sentencing should be proportionate to the offence and take into account mitigating factors such as the recovery of stolen property and the offender's lack of prior criminal record. Accordingly, the sentence was set aside and substituted with the period already served, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The sentence of five years imprisonment is set aside as being harsh.
- The sentence is substituted with the period already served.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Criminal Appeal 144 of 2008
(From original conviction and in criminal case no.1014 of 2008 and sentence of the Senior Resident Magistrate Courtat Kilifi Before PM Kiama RM)
FRANKLIN FURAHA GACHORY…………………APPELLANT
VERSUS
REPUBLIC……….........………………………………RESPONDENT
JUDGMENT
Franklin Furaha Gachory(the appellant) was convicted on a charge of entering in a dwelling house with intention to commit a felony contrary section 305(1) Penal Code.He pleaded guilty to the charge and was sentenced to serve 5 years imprisonment.
The particulars of the charge were that on 9th December 2008 at Kilifi Township within Kilifi District, the appellant entered into the dwelling house of Agnes Changawa with intent to commit a felony, namely theft and did steal Ksh.200/- silver coins form therein.
The facts were narrated that on the date and time in question, the complainant was in the hotel and sent her daughter to the appellant she found the house closed from inside – there was commotion in the house and she saw the appellant jump from the house through the roof.The appellant was arrested by members of the public.On searching the house complainant found that Kshs.200/- was missing and the same was recovered from the appellant.
Appellant confirmed the facts as being correct.He appealed only on sentence saying he was a first offender who had not been involved in any criminal activity and he was remorseful.
The State conceded the appeal saying in view of the amount of money involved, and the fact that it was all recovered, and then the 5 year sentence, (which is the maximum) was harsh.Miss Waigera for State had no objection to the sentence being reduced to the period already served.I concur totally with the sentiments expressed by the learned State Counsel.
The appeal on sentence is merited – the sentence of five years imprisonment is set aside as being harsh, and substituted with the period already served.Appellant shall therefore be set at liberty forthwith unless otherwise lawfully held.
Delivered and dated this 9th day of July 2010 at Malindi.
H A OMONDI
JUDGE