[2004] KEHC 1795 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL DIVISION CRIMINAL APPEAL NO. 443 OF 2003

(From Original Conviction and Sentence in Criminal Case No. 776 of 2000 of the Senior Resident Magistrate’s Court at Molo) – J. KIARIE

JAMES OMBATI NYAMWEYA………………APPELLANT

VERSUS

REPUBLIC …………………………………….RESPONDENT

JUDGMENT

The Appellant, James Ombati Nyamweya, was charged with the offence of store breaking contrary to Section 306 (a) of the Penal Code. The particulars of the charge were that between the 2nd and 3rd of April 2000 at Muchorwe Molo in Nakuru District jointly with others who were charged with him broke and entered a building namely a store and stole from therein four batteries valued at Kshs. 20,000/= the property of Catherine Njeri. After a full trial the Appellant was convicted as charged and sentenced to six years imprisonment with six strokes of the cane. The Appellant was aggrieved and appealed out of time with the leave of this Court against both the said conviction and sentence.

The Appellant has raised several grounds in his Petition of Appeal challenging the decision of the trial Magistrate. However, when this Appeal came up for hearing, the Appellant abandoned all the grounds of Appeal against his Conviction by the trial Court. He only urged this Court to consider reducing his sentence to the period already served. He submitted that he has been sufficiently punished having been in prison since the 2nd of November 2000 when he was convicted. Mr. Koech, Learned State Counsel did not oppose the position taken by the Appellant.

I have re-evaluated the evidence adduced before the trial Magistrate. I find that the evidence adduced by the prosecution was sufficient and proved the case against the Appellant beyond any reasonable doubt. He was well advised to abandon his appeal against conviction as the evidence against him was overwhelming. The value of the stolen items was Kshs 20,000/=. All the stolen items were recovered and returned to the Complainant. The Appellant was sentenced to a term of six years imprisonment on the 2nd of November 2000. He has been in prison for slightly more than three years.

I have considered the fact that the Appellant has stated that he is remorseful and has been sufficiently punished in the period that he has been incarcerated. I have also considered the fact that the items which were stolen were recovered. I have further www.kenyalawreports.or.ke 3 considered the fact that the Appellant’s co-accused’s Appeal was allowed and his sentence reduced to the term then served.

In the circumstances of this case I find that the period which the Appellant has served in jail is sufficient punishment for the offence which he was convicted. He appears to be remorseful and sufficiently reformed not to repeat the commission of such offence. I therefore allow the Appeal against Sentence and commute the sentence of the Appellant to the period already served.

The Appellant is therefore ordered set at liberty unless otherwise lawfully held.

DATED at NAKURU this 22nd day of April, 2004.

L. KIMARU

AG. JUDGE