[2019] KEHC 9428 (KLR)
The court found that although the trial magistrate erred by not pronouncing sentence on each limb of the charge and failing to sign the record, these procedural errors did not prejudice the appellant. The sentence of four years imprisonment was within the statutory limits for both offences and was not excessive. To...
Source-derived case information.
- Citation
- [2019] KEHC 9428 (KLR)
- Parties
- Appellant: Fredrick Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 3 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- House Breaking, Stealing, Sentencing Principles, Plea of Guilty, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Omondi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four years imprisonment imposed on the appellant was excessive.
- 2 Whether the trial magistrate erred in procedure by not pronouncing sentence on each limb of the charge and failing to sign the record.
Ratio Decidendi
The court found that although the trial magistrate erred by not pronouncing sentence on each limb of the charge and failing to sign the record, these procedural errors did not prejudice the appellant. The sentence of four years imprisonment was within the statutory limits for both offences and was not excessive. To regularize the sentence, the High Court set aside the original sentence and substituted it with four years imprisonment on each limb, to run concurrently, effective from the date of the original sentence. The appeal was therefore dismissed as lacking merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence by the trial magistrate is set aside and substituted with four years imprisonment on each limb, sentences to run concurrently from the date of original sentencing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 3 OF 2018
FREDRICK OMONDI.....................APPELLANT
VERSUS
REPUBLIC....................................RESPONDENT
(From the original conviction and sentence in Criminal case No.431B of 2017 of the Chief Magistrate’s Court at Busia by Hon. G.N Wakahiu– Chief Magistrate)
JUDGMENT
1. FREDRICK OMONDI, the appellant herein, were convicted after pleading guilty to a charge of house breaking contrary to section 304(1) (b) of the Penal Code and stealing contrary to section 279 (b) of the Penal Code.
2. The particulars of the offence were that on the 10th October 2017 atPort Victoriatown in Busia County, broke and entered into the dwelling house of Lilian Madara and stole from therein cash Kshs.50,000/=, two mobile phones all valued at Kshs.55,000/= the property of Lilian Madara.
3. The appellant was sentenced to serve four years imprisonment. He has appealed against the sentence which he has described as excessive.
4. The appellant was in person.
5. The state opposed the appeal through Ms. Ngari, learned counsel.
6. Section 304 (1) (b) of the Penal Code provides as follows:
1) Any person who—
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony inany such building, tent or vessel, breaks out thereof,is guilty of the felony termed housebreaking and is liable to imprisonment for sevenyears.
On the other hand, section 279 (b) of the Penal Code states:
(b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after thetime of stealing uses or threatens to use violence to any person in the dwelling-house the offender is liable to imprisonment for fourteen years.
7. The learned trial magistrate’s record was untidy, legally speaking. He ought to have convicted after the appellant had confirmed that the facts were true. His record however, shows that he convicted after the appellant pleaded guilty. The learned trial magistrate did not sign the record at the end of the proceedings. Although no prejudice was occasioned to the appellant, this practice is undesirable for it can raise very many legal issues.
8. This is the only charge which is allowed to be charged with two limbs. When sentencing after a plea of guilty or after trial, the court is expected to pronounce the sentence on each limb and the sentence is ordered to run concurrently. The learned trial magistrate erred in this case for failure to do so. I however note that the appellant was not prejudiced.
9. The offence of house breaking has a maximum penalty of seven years imprisonment and that of stealing under section 279 (b) of the Penal Code has a maximum of fourteen years imprisonment. The four years he was sentenced to serve cannot be said to be excessive. I will not disturb the duration, but to regularize the sentence, I set aside the sentence by the learned trial magistrate and substitute it with a sentence of four (4) years imprisonment on each limb. The sentence to run concurrently. For avoidance of any doubts, the sentence will run from when he was sentenced by the lower court.
10. The upshot of the foregoing is that the appeal is dismissed.
DELIVERED and SIGNED at BUSIA this 5th Day of March, 2019
KIARIE WAWERU KIARIE
JUDGE