[2018] KEHC 1517 (KLR)
The court found that the appellant, a first offender and youth, had already served three years of a five-year sentence for stock theft and had spent six months in remand custody prior to conviction. The trial court failed to consider the period spent in custody as required by Section 333(2) of the Criminal Procedure...
Source-derived case information.
- Citation
- [2018] KEHC 1517 (KLR)
- Parties
- Appellant: Jacob Mutisya Munyoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence set aside and substituted with term served; appellant to be released unless otherwise lawfully held
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Stock Theft, Mitigation, Remand Custody Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Mutisya Munyoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for stock theft was excessive or failed to consider relevant factors.
- 2 Whether the period spent in remand custody prior to sentencing should be taken into account.
Ratio Decidendi
The court found that the appellant, a first offender and youth, had already served three years of a five-year sentence for stock theft and had spent six months in remand custody prior to conviction. The trial court failed to consider the period spent in custody as required by Section 333(2) of the Criminal Procedure Code. Applying the principle that sentences should account for time already served and considering the appellant's mitigation, the High Court set aside the original sentence and substituted it with the term already served, ordering the appellant's release unless otherwise lawfully held.
Court Disposition
sentence set aside and substituted with term served; appellant to be released unless otherwise lawfully held
Orders
- The sentence of five years imprisonment is set aside and substituted with the term already served.
- The appellant shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL APPEAL NO. 64 OF 2016
JACOB MUTISYA MUNYOKI...................................APPELLANT
VERSUS
REPUBLIC..................................................................RESPONDENT
(Being an Appeal from Original Conviction and SentenceinMwingi Senior Resident Magistrate’s Court
Criminal Case No. 357 of 2015byHon. K. Sambu P Mon17/12/15).
J U D G M E N T
1. Jacob Mutisya Munyoki, was charged, convicted of the offence of Stealing Stockcontrary to Section 278of the Penal Codeand sentenced to five (5) years imprisonment.
2. Being satisfied with the conviction he now mitigates on sentence. In his written submissions he urged that he was a sole bread winner of his family; he has upgraded spiritually through a Department of Spiritual Reformation and now he is an Ambassador of Christ; the period he was held in custody prior to being sentenced was not considered; he will be a good member of the community and he is ready to carry on the newly found virtues to the society if given a second chance.
3. The State through learned Counsel, Mr. Mambaopposed the Appeal on grounds that the Appellant did not state why he required review of the sentence and he was not remorseful.
4. Sentence is a matter of discretion. An Appellate Court would ordinarily not interfere with sentence unless it is demonstrated that the Court acted on a wrong principles or took into consideration irrelevant consideration or if the sentence is excessive. This was well put in the case of Bernard Kimani Gacheru vs. Republic Criminal Appeal No. 188 of 2000where the court of Appeal stated thus:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
5. A person who steals a bull is liable to imprisonment for a period not exceeding fourteen (14) years.The value of the bull that was stolen was Kshs. 35,000/=.
Section 333(2)of the Criminal Procedure Codeprovides thus:
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
6. The Appellant was sentenced to five (5) years imprisonment.He has so far served three (3) years imprisonment.He was in remand custody for six (6) monthsprior to being convicted. Considering the fact that he was a first offender and described by the trial Court as a youth, I do set aside the sentence meted out and substitute it with the term served. He shall be set at liberty unless otherwise lawfully held.
7. It is so ordered.
Dated, Signedand Delivered at Kituithis 19thday of December, 2018.
L.N. MUTENDE
JUDGE