[2017] KEHC 2736 (KLR)
The High Court found that the sentence of four years imprisonment imposed on the applicant for damaging property worth Ksh 2,000 was manifestly excessive and not proportionate to the value of the property or the circumstances of the offence. The court emphasized that the statutory provision under Section 339(1) of...
Source-derived case information.
- Citation
- [2017] KEHC 2736 (KLR)
- Parties
- Applicant: Harry Kiondo Mwang’ombe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 9 of 2017
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Sentence of four years imprisonment set aside and replaced with one week probation; applicant to be released unless otherwise lawfully held.
- Judges
- CM Kamau
- Legal Topics
- Malicious Damage to Property, Sentencing Principles, Probation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Harry Kiondo Mwang’ombe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence of four years imprisonment for malicious damage to property was excessive and warranted interference by the High Court.
- 2 Whether the applicant was a suitable candidate for probation as recommended by the probation report.
Ratio Decidendi
The High Court found that the sentence of four years imprisonment imposed on the applicant for damaging property worth Ksh 2,000 was manifestly excessive and not proportionate to the value of the property or the circumstances of the offence. The court emphasized that the statutory provision under Section 339(1) of the Penal Code prescribes a maximum, not a mandatory, sentence, and that the probation report indicated the applicant was suitable for probation. The court exercised its discretion to set aside the custodial sentence and substitute it with a probation order, considering the applicant's time already served and the recommendations for rehabilitation.
Court Disposition
Sentence of four years imprisonment set aside and replaced with one week probation; applicant to be released unless otherwise lawfully held.
Orders
- The sentence of four years imprisonment imposed on the applicant is set aside and vacated.
- The applicant is placed on probation for one week.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL REVISION CASE NO 9 OF 2017
HARRY KIONDO MWANG’OMBE...................APPLICANT
VERSUS
REPUBLIC.........................................................RESPONDENT
RULING
1. The Applicant was charged with the offence of malicious damage to property contrary to Section 339 (1) of the Penal Code. He had been charged with damaging his biological father’s thermos and chair worth 2,000/- on 1st July 2017. He pleaded not guilty to the charge.
2. After the trial, the Learned Trial Magistrate Hon N N Njagi, Senior Principal Magistrate sentenced him to four (4) years imprisonment. The Learned Trial Magistrate was not persuaded by the Probation Report of Kanampiu K Ezekiel in which he had recommended that the Applicant be placed on probation as arrangements were being made to take him to a Rehabilitation Centre.
3. As rightly observed by Miss Anyumba for the State, a person who is convicted of the offence under Section 339 (1) of the Penal Code is liable to five (5) years imprisonment. The term “liable to” connotes the maximum sentence but notthe mandatory sentence. The Probation Report indicated that the Applicant was most suited for Probation. He damaged goods worth Ksh 2,000/-. It is my view that the sentence of four (4) years imprisonment was not commensurate with the value of the goods that he damaged and it was manifestly excessive warranting this court to interfere with the same.
4. Accordingly, I hereby set aside and vacate the sentence of four (4) years imprisonment that the Learned Trial Magistrate had imposed on the Applicant and hereby replace the same with an order that he be placed on probation for one (1) week. As the Applicant has since been in prison for about two and a half (2 ½) months, I hereby direct and order that he be set free forthwith unless he be held for any other unlawful cause.
5. Orders accordingly
DATED and DELIVERED at VOI this 11thday of October2017
J KAMAU
JUDGE
In the presence of:-
Harry Kioko Mwang’ombe - Applicant
Miss Anyumba - for State
Josephat Mavu – Court Clerk