[1976] KEHC 39 (KLR)
The appellate court held that restitution, while generally to be encouraged and a relevant factor at trial, should not ordinarily be considered by an appellate court when offered after conviction and sentence, as it may appear to be an attempt to bargain for a reduced sentence rather than genuine repentance. In this...
Source-derived case information.
- Citation
- [1976] KEHC 39 (KLR)
- Parties
- Appellant: Hezekiah Mwaura Kibe; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? ? of ??
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- appeal dismissed
- Judges
- AH Simpson, AA Kneller
- Legal Topics
- Forgery, Uttering False Document, Obtaining by False Pretences, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah Mwaura Kibe
Appellant
The Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentences imposed for forgery, uttering a false document, and obtaining money by false pretences were excessive or should be interfered with on appeal.
- 2 Whether restitution or the prospect of restitution should affect the sentence on appeal.
Ratio Decidendi
The appellate court held that restitution, while generally to be encouraged and a relevant factor at trial, should not ordinarily be considered by an appellate court when offered after conviction and sentence, as it may appear to be an attempt to bargain for a reduced sentence rather than genuine repentance. In this case, restitution was not voluntary, as the victims were able to enforce it through other means. The appellant's previous convictions were properly considered, but his subsequent good conduct was also acknowledged. The court found no reason to interfere with the sentences imposed by the trial court, as they were neither excessive nor based on wrong principles.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed. The sentences imposed by the trial court are upheld.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
APPELLATE SIDE
HEZEKIAH MWAURA KIBE ……....………..APPELLANT
VERSUS
THE REPUBLIC……………………….……RESPONDENT
JUDGMENT OF THE COURT
The appellant was convicted of forgery (section 350(1) of the Penal Code), uttering a false document (section 353) and obtaining money by false pretences (section 313) and was sentenced to five years’ imprisonment on each of the first and second counts and to three years’ imprisonment on the third count, the sentences to run concurrently. He appeals against sentence only.
The appellant was a transporter. He received a cheque for his services from Kenya Breweries Ltd. This cheque was for Shs 4597/25. He altered it to read Shs 94,597/25 before depositing it in his account with Kenya Commercial Bank in Nakuru. Shs 94,597/25 was credited to that account and the same amount was debited to the account of Kenya Breweries Ltd with Barclays Bank International Ltd, Government Road branch, Nairobi.
Sentencing the appellant the Senior Resident Magistrate said: “The amount in forgery involved is Shs 90,000 none of which has been recovered”. This suggests, according to Mr Swaraj Singh who appeared for the appellant, that in the event of restitution even in part, the magistrate would have been inclined to impose a more lenient sentence. Restitution, he said, would eventually be made.
The appellant has an overdraft with Kenya Commercial Bank, Nakuru, secured over property mortgaged to the bank and the bank was enforcing its security. In R v Bell(1919) 14 Cr App Rep 36 the Court of Criminal Appeal in England said:
People who commit crimes, however bad they may be, should be encouraged to make reparation, and the only way we can encourage them to do so is to take into consideration when passing sentence on them the fact that they have done some good as well as some evil.
We agree that restitution is to be encouraged and is a factor which should be taken into account by a trial court in assessing sentence. Only in exceptional cases, however, can it be taken into account by an appellate court when made or offered after conviction and sentence. It then savours of an attempt to bargain for a reduction of sentence and is no indication of repentance and a desire to make amends.
In the present case it is not even voluntary since it appears that the victims of the appellant’s crimes are in the fortunate position of being able to enforce restitution. The magistrate took into account previous convictions from 1950 to 1961 but added:
Nevertheless, it would seem that after the last conviction, the accused apparently changed his way of life and has had unblemished record for the past 14 years.
We can see no reason to interfere with the sentences imposed.
Appeal dismissmed.
Dated and Delivered at Nairobi this 13th May 1976
A.H. SIMPSON
…………………
JUDGE
A. A. KNELLER
………………
JUDGE