[2009] KEHC 4077 (KLR)
The court found that although the sentence of 7 years imprisonment was within the legal maximum for the offence of stealing stock, it was manifestly harsh and excessive given the circumstances. The appellant was a first offender, pleaded guilty, saved judicial time, and the stolen sheep was recovered and returned to...
Source-derived case information.
- Citation
- [2009] KEHC 4077 (KLR)
- Parties
- Appellant: Jackson Ndungu Wanjiru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 39 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MSA Makhandia
- Legal Topics
- Sentencing Principles, Plea of Guilty, Stealing Stock, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Ndungu Wanjiru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years imprisonment for stealing stock was harsh and excessive in the circumstances.
- 2 Whether the trial court exercised its sentencing discretion judicially.
Ratio Decidendi
The court found that although the sentence of 7 years imprisonment was within the legal maximum for the offence of stealing stock, it was manifestly harsh and excessive given the circumstances. The appellant was a first offender, pleaded guilty, saved judicial time, and the stolen sheep was recovered and returned to the complainant, substantially mitigating the loss. The trial magistrate did not appear to have considered these mitigating factors adequately. The appellate court therefore held that a sentence of 4 years imprisonment would meet the justice of the case and substituted the original sentence accordingly.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of 7 years imprisonment is set aside and substituted with a sentence of 4 years imprisonment from the date of conviction and sentence, 31st January 2006.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 39 of 2006
JACKSON NDUNGU WANJIRU …………….. APPELLANT
VERSUS
REPUBLIC.…………...……………………… RESPONDENT
(Being an appeal from the conviction and sentence of R.A.A. OTIENO Senior Resident
Magistrate in Chief Magistrate’s Criminal Case No. 180 of 2006 at Nyeri)
JUDGMENT
JACKSON NDUNGU WANJIRU hereinafter referred to as “the Appellant” was charged with one count of stealing stock contrary to section 278 of the Penal Code. When arraigned in court on 18th November, 2004, the Appellant entered a plea of not guilty and his trial was scheduled for 31st January, 2006. However when the case next came up for mention on 26th January, 2006 the appellant changed his plea to one of guilty and was accordingly convicted. Upon conviction on his own plea of guilty, the appellant was sentenced to 7 years imprisonment.
The appellant was aggrieved by the sentence and hence lodged the instant appeal limited to sentence only. When the appeal came up for hearing, the appellant in support thereof stated that he pleaded guilty to the charge, that the sentence imposed was harsh and excessive and that four years imprisonment would have met the ends to justice in this case.
In response, Mr. Orinda learned Senior Principal State Counsel opted to leave the matter to the discretion of the court.
Sentencing is a matter for the discretion of the trial court. The discretion must, however, be exercised judicially. The trial court must be guided by evidence and sound legal principles. It must take into account all relevant factors and eschew all extraneous factors. The appellate court may however interfere with the discretion of the sentencing court if it is shown that the sentence imposed is illegal, harsh and excessive, that the trial court acted upon wrong principle, took into account immaterial factors and overlooked some material factors. See generally WANJEMA VS REPUBLIC [1971] E.A. 493.
In the instant case the offence for which the appellant was prosecuted carries a maximum sentence of 14 years imprisonment. However the appellant was sentenced to half the term aforesaid. The sentence imposed was thus legal. Nothing has been brought to my attention that would suggest that in arriving at the sentence aforesaid, the learned magistrate took irrelevant consideration into account and or failed to put into account relevant considerations. Is the sentence imposed manifestly harsh and excessive? It does appear to me to be so taking into account all the circumstances of the case. The appellant was a first offender, he pleaded guilty to the charge and thereby saved the court its valuable judicial time. The stolen sheep too was recovered and handed over to the owner, the complainant thereby substantially mitigating his loss. Taking all the foregoing into account, the sentence imposed was no doubt manifestly harsh and excessive. The appellant is of the view that a prison term of 4 years imprisonment would have met the justice of the case. I agree. Accordingly the appeal on sentence succeeds to the extent that the appellant shall now serve 4 years imprisonment with effect from the date of conviction and sentence, that is to say 31st January 2006.
Dated and delivered at Nyeri this 29th day of January 2009.
M.S.A. MAKHANDIA
JUDGE