[2021] KEHC 4582 (KLR)
The court found that the trial court had considered all relevant factors, including the applicant's breach of trust as a guide to a visually impaired complainant, the sale of the stolen items, and subsequent threats to the complainant. The sentence of eighteen months imprisonment was lawful and not excessive given...
Source-derived case information.
- Citation
- [2021] KEHC 4582 (KLR)
- Parties
- Applicant: George Dibondo Oyula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E082 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Option of Fine After Conviction and Sentencing
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Discretion, Stealing Offence, Application for Fine, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Dibondo Oyula
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Option of Fine After Conviction and Sentencing
Legal Issues
- 1 Whether the applicant should be granted an option of fine after being sentenced to imprisonment for stealing.
- 2 Whether the sentence imposed by the trial court was manifestly excessive or based on wrong principles.
Ratio Decidendi
The court found that the trial court had considered all relevant factors, including the applicant's breach of trust as a guide to a visually impaired complainant, the sale of the stolen items, and subsequent threats to the complainant. The sentence of eighteen months imprisonment was lawful and not excessive given the circumstances. There was no basis for interfering with the trial court's discretion or granting an option of fine. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for an option of fine is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION-MILIMANI COURT
MISC. CRIMINAL APPLICATION NO. E082 OF 2021
GEORGE DIBONDO OYULA.......................................................APPLICANT
VERSES
REPUBLIC..................................................................................RESPONDENT
RULING
1. George Dibondo Oyula, the Applicant, was convicted for the offence of stealing contrary to Section 268(2) (a) as read with Section 275 of the Penal Code. Particulars of the offence were that on the 14th day of December,2020, at Accra road, within Nairobi County, he stole a braille note taker and laptop make HP all valued at Ksh. 535,000/-and sentenced to serve eighteen(18) months imprisonment.
2. Through an application filed herein on the 18th March, 2021, he seeks to be given an option of fine. In an affidavit supporting the application he avers that the time he has spent in jail has made him learn a lesson such that he will never engage in crime.
3. In response thereto the State/Respondent opposed the application stating that the Applicant having pleaded guilty, the sentence imposed was lenient since the sentence provided for the offence is three (3) years imprisonment.
4. Sentence is a matter of discretion such that an appellate court will normally not interfere with exercise of discretion by the trial court unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; and if the sentence is manifestly excessive. This was stated by the Court of Appeal in Bernard Kimani Gacheru Vs. Republic [2002] eKLR;where it was held that:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”
5. In the instant case the Applicant was the guide of the complainant, a person who was visually impaired. It was stated that after stealing he sold the exhibit to the Chairperson of the Kenya Society for the blind who alerted the police. And after being charged, he continued threatening the complainant which was an abuse of the trust that the complainant bestowed unto him.
6. In meting out the sentence the trial court took all these factors into consideration. In the circumstances, the sentence meted out that was lawful was not excessive.
7. In the premises, the application is bereft of merit, accordingly, it is dismissed.
8. It is so ordered.
Dated, Signed and DeliveredVirtuallythis 28th day of July, 2021.
L. N. MUTENDE
JUDGE