[2008] KEHC 2117 (KLR)
The High Court found that the lower court's decision to impose consecutive sentences, resulting in a total of seven years imprisonment for a first offender who pleaded guilty and offered mitigation, was harsh and excessive. The court held that the sentences should run concurrently, and that fines should be imposed...
Source-derived case information.
- Citation
- [2008] KEHC 2117 (KLR)
- Parties
- Appellant: James Maina Nduhiu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 253 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, Plea of Guilty, Burglary, Breaking and Stealing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina Nduhiu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the lower court was harsh and excessive.
- 2 Whether the sentences should run consecutively or concurrently.
Ratio Decidendi
The High Court found that the lower court's decision to impose consecutive sentences, resulting in a total of seven years imprisonment for a first offender who pleaded guilty and offered mitigation, was harsh and excessive. The court held that the sentences should run concurrently, and that fines should be imposed with imprisonment in default, rather than consecutive custodial sentences. The court exercised its discretion to set aside the consecutive sentences and substituted them with fines for each count, with imprisonment in default, and ordered that all sentences run concurrently from the date of first sentencing.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of the lower court is set aside.
- The appellant is sentenced in respect of count 1 and 2 to a fine of KES 5,000 each, in default two years imprisonment on each count.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 253 of 2007
JAMES MAINA NDUHIU ……..………..………… APPELLANT
Versus
REPUBLIC ………………………..……………… RESPONDENT
(Being an appeal against the conviction and sentence by B. M. KIMEMIA, Resident Magistrate, in the Senior Resident Magistrate’s Criminal Case No. 645 of 2007 at KARATINA)
JUDGMENT
The appellant pleaded guilty in the lower court to two counts of Breaking into a building and stealingand toonecount ofburglary. The facts that were given by the prosecution were that on the night of 15th/16th July 2007 at Kaiyaba Trading Centre the appellant with others broke into two shops and stole items of property. A report was made and on investigation being commenced the appellant was found in possession of a pair of shoes belonging to one of the complainant together with other items of property. The appellant confirmed the facts to be correct. The court sentenced the appellant in respect of count 1 and 2 to kshs. 5,000 on each count and in default to serve a term of imprisonment for two years on each count. In respect of count 3 the appellant was sentenced to three years imprisonment. All sentences were to run consecutively. The appellant was said to be a first offender and in mitigation he stated that he was taking care of young children who did not have their mother. In submissions before this court he repeated those mitigations. I have reconsidered the sentence meted out by the lower court. The maximum sentence on all counts is seven years. The effect of the sentence of the lower court was that the appellant would serve seven years in total. That sentence is harsh and excessive and I do hereby set aside that sentence and instead I do hereby sentence the appellant in respect of count 1 and 2 to a fine of kshs. 5,000 and in default two years imprisonment on each count. In respect of count 3 I do sentence the appellant to a fine of kshs. 7,000 and in default to serve 2 ½ years imprisonment. Those sentences of this court shall run concurrently and will begin to run from 12th July 2007.
DATED AND DELIVERED THIS 28TH DAY OF JULY 2008
MARY KASANGO
JUDGE