[2012] KEHC 1858 (KLR)
The court found that the trial magistrate had properly considered the appellant's mitigation, including his status as a first offender, but also took into account the substantial sums of money obtained from different complainants and the fact that the offences were committed at different times. The omission to...
Source-derived case information.
- Citation
- [2012] KEHC 1858 (KLR)
- Parties
- Appellant: George Makau Mulwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 435 of 2009
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Obtaining by False Pretences, Sentencing Principles, First Offender Consideration, Attempted Stealing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Makau Mulwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was legal and fair considering the circumstances of the offences committed.
- 2 Whether the omission to sentence the appellant on the fourth count affects the legality of the conviction and sentence.
Ratio Decidendi
The court found that the trial magistrate had properly considered the appellant's mitigation, including his status as a first offender, but also took into account the substantial sums of money obtained from different complainants and the fact that the offences were committed at different times. The omission to sentence the appellant on the fourth count was noted as an error, but the appellate court declined to impose a sentence at this stage. The sentences imposed on counts 1, 2, and 3 were held to be legal and fair in light of the circumstances and seriousness of the offences. Accordingly, the appeal against sentence was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentences imposed by the trial magistrate are upheld.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Criminal Revision 435 of 2009
GEORGE MAKAU MULWA ………........……………………. APPELLANT
VERSUS
REPUBLIC …………………………………………………. RESPONDENT
JUDGMENT
The appellant was convicted of four offences three of which related to obtaining money by false pretences contrary to Section 313 of the Penal code and one of attempting to steal contrary to Section 275 as read with section 389 of the Penal code. He was convicted of all the four offences and sentenced to serve 2 years imprisonment in respect of counts 1, 2 and 3 and sentences ordered to run consecutively. Although he was convicted of the 4th count, he was not sentenced in respect of that particular count. This must have been an omission on the part of the learned trial magistrate. Aggrieved by the said conviction and sentence he lodged this appeal whereby he challenged the judgment of the learned trial magistrate in respect of sentence alone.
I have noted the grounds of appeal and also what he has had to say in his submission. It is true that he is a first offender and he said as much in his mitigation before the learned trial magistrate. The learned trial magistrate considered the mitigation offered by the appellant. I have also considered the same but add that the appellant obtained a substantial amount of money from different complainants which money has not been recovered. The complainantts were different and offences were committed at different times. I also note that he was not sentenced in respect of the 4th count upon which he was convicted. He must count himself lucky because at this stage I am unable to impose any sentence on him in respect of that count. I believe the sentences were legal and fair considering the circumstances and seriousness of the offences committed. According his appeal is hereby dismissed.
Orders accordingly.
Dated, signed and delivered at Nairobi this 4th day of July, 2012.
A.MBOGHOLI MSAGHA
JUDGE