[2021] KEHC 9101 (KLR)
The High Court found that the trial court erred by failing to consider the recovery and return of the stolen goats to the owner, which is a significant mitigating factor. This omission constituted an error of law, justifying appellate interference with the sentence. The court held that, in the circumstances, the...
Source-derived case information.
- Citation
- [2021] KEHC 9101 (KLR)
- Parties
- Appellant: Ibrahim Kemboi Chelimo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 2 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Stock Theft, Sentencing Principles, Mitigation, First Offender, Recovery of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Kemboi Chelimo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of three years' imprisonment for stock theft was manifestly excessive in light of the recovery of the stolen property.
- 2 Whether the trial court erred in failing to consider the recovery of the stolen goats when sentencing.
Ratio Decidendi
The High Court found that the trial court erred by failing to consider the recovery and return of the stolen goats to the owner, which is a significant mitigating factor. This omission constituted an error of law, justifying appellate interference with the sentence. The court held that, in the circumstances, the three-year imprisonment was manifestly excessive and reduced the sentence to the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The sentence of three years' imprisonment is set aside and substituted with the period already served.
- The appellant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO. 2 OF 2020
IBRAHIM KEMBOI CHELIMO..........................................................................APPELLANT
VERSUS
REPUBLIC............................................................................................................RESPONDENT
(Being an appeal from the original sentence of Hon Biwott, SPM, dated 8th January 2020
in Criminal Case No 8 of 2020 in the Senior Principal Magistrate’s Court at Kabarnet,
Republic v Ibrahim Kemboi Chelimo)
JUDGMENT
In his petition to this court the appellant has appealed against his sentence of three years’ imprisonment in respect of the offence of stock theft contrary to section 278 of the Penal Code (Cap 63) Laws of Kenya.
In his mitigation to this court, the appellant has submitted as follows. He is a first offender. And that he was influenced to commit this offence due to drinking alcohol, which he has promised to stop taking.
He is married and has a young family who depend upon him as their sole bread winner. He has also stated that the victim has forgiven him.
Mr. Mong’are for the respondent has not taken any position in respect of this matter. Instead he has submitted that this court exercises discretion in the matter.
In sentencing the appellant, the trial court took into account that the appellant was a first offender and was remorseful. It then proceeded to sentence the appellant to three years’ imprisonment.
This is a first appeal. I have independently re-assessed the sentence imposed upon the appellant as a first appeal court. As a result, I find that the trial court failed to take into account that the two goats that were stolen were recovered and were ordered returned to the owner on 8/1/2020. This is an error of law that entitles this court to interfere with the sentencing discretion of the trial court.
In the circumstances, I find that the sentence imposed was manifestly excessive and I hereby reduce it to the one already served.
In the premises, the appellant’s appeal succeeds and is hereby ordered released unless held on other lawful warrants.
Judgment dated, signed and delivered in open court at Kabarnet this 9th day of February 2021.
J M BWONWONG’A
JUDGE
In the presence of
Mr. Kemboi Court Assistant.
Appellant present in person.
Mr. Mong’are for the Respondent.