[2005] KEHC 1170 (KLR)
The court found that while the sentence of five years imprisonment was within the lawful maximum for the offence, it was excessive given the appellant's status as a first offender, his plea of guilty at the earliest opportunity, his youth, and the partial recovery of stolen items. The court held that these...
Source-derived case information.
- Citation
- [2005] KEHC 1170 (KLR)
- Parties
- Appellant: Isaack Kariuki Githinji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 230 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Plea of Guilty, Mitigation, First Offender, House Breaking, Handling Stolen Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaack Kariuki Githinji
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment imposed on the appellant was harsh and excessive in the circumstances.
- 2 Whether the trial magistrate erred by not giving the appellant an opportunity to explain possession of the complainant's property.
- 3 Whether the trial magistrate failed to caution the appellant on the consequences of pleading guilty.
Ratio Decidendi
The court found that while the sentence of five years imprisonment was within the lawful maximum for the offence, it was excessive given the appellant's status as a first offender, his plea of guilty at the earliest opportunity, his youth, and the partial recovery of stolen items. The court held that these mitigating factors warranted a reduction of the sentence to three years imprisonment. The appeal was allowed to that extent, and the sentence was reduced accordingly.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of five years imprisonment is set aside and substituted with a sentence of three years imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION Criminal Appeal 230 of 2004
(From Original conviction and sentence in Criminal Case No. 1269 of 2004 of the Senior Resident Magistrate’s court at Limuru
ISAACK KARIUKI GITHINJI .……………………………….………..APPELLANT
VERSUS
REPUBLIC ……………………………………….…………………….RESPONDENT
JUDGMENT
The Appellant in this Appeal, ISAACK KARIUKI GITHINJI, (to whom I shall refer to as the “Appellant”) was charged in the Lower Court with another person with the offence of house breaking contrary to Section 304 (1) and stealing contrary to Section 279 (b) of the Penal Code. They also faced an alternative count of handling stolen goods contrary to Section 322 (2) of the Penal Code. The particulars of each count were specified in the charge sheet.
When the charges were read to the appellant, he pleaded guilty and a plea of guilty was entered against him. The facts were then read to him and he confirmed that the facts as read were true. He was accordingly convicted and after mitigation, sentenced to serve a period of imprisonment for five (5) years on first count only. The Appellant was aggrieved with the said sentence and has filed the Appeal before me. The Appeal is premised on three grounds which are as follows:-
1. THATthe Learned trial Magistrate erred in Law and fact by sentencing me to 5 years imprisonment without even giving me an opportunity to explain in Court how I came into possession of the Complainant’s property.
2. THAT the Learned trial magistrate erred in law and fact in sentencing me to 5 years imprisonment on my own plea even before she cautioned me of the dire consequences of the plea.
3. THAT the Learned trial magistrate erred in law and fact in failing to caution herself before she arrived at the decision she arrived at.
In his address to me, the Appellant who was unrepresented confirmed that he was only appealing against the sentence. He submitted that the sentence imposed was harsh and excessive. That he was remorseful. He was also a first offender. He therefore urged the court to consider reducing the sentence imposed. Mrs. Kagiri, Learned State Counsel opposed the Appeal maintaining that the sentence of five years imprisonment was neither harsh nor excessive in the circumstances of this case. The offence committed was serious and prevalent in Ruai Area of Nairobi. The sentence of five years imposed on the Appellant should serve as a deterrent to others like minded. She therefore urged Court not to disturb the sentence.
I have considered the submissions by the Appellant and by the Learned State Counsel, as well as the facts and circumstances of the case and the Law. The offence for which the Appellant was convicted carries a maximum sentence of seven years. The Appellant was slapped with 5 years imprisonment. He was a first offender and pleaded guilty to the charge at the first instance and thereby saved the Court valuable Judicial time.He was a young man. Some of the items stolen by the Appellant were recovered.
On my own evaluation of the facts and the above circumstances of the case, I think that five years imprisonment in the circumstances of this case may appear to be excessive and or harsh though lawful. I will interfere with the same to the extend that the Appellant shall now serve three years imprisonment only. To that limited extend, the Appeal succeeds.
Dated at Nairobi this 21st of September, 2005.
……………………………………………..
M. S. A. MAKHANDIA
JUDGE