[2014] KEHC 2441 (KLR)
The appellate court found that the trial magistrate properly exercised discretion in sentencing by considering the appellant's mitigation, the fact that he was a first offender, and the gravity of the offences. The sentences imposed were within the statutory limits and were ordered to run concurrently, consistent...
Source-derived case information.
- Citation
- [2014] KEHC 2441 (KLR)
- Parties
- Appellant: James Wandera Agwata; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 60 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Arson, Malicious Damage to Property, Mitigation, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Wandera Agwata
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was unlawful, excessive, or failed to consider relevant sentencing principles.
- 2 Whether the trial magistrate properly considered the appellant's mitigation and circumstances before sentencing.
Ratio Decidendi
The appellate court found that the trial magistrate properly exercised discretion in sentencing by considering the appellant's mitigation, the fact that he was a first offender, and the gravity of the offences. The sentences imposed were within the statutory limits and were ordered to run concurrently, consistent with established legal principles. There was no error in law or principle, nor was the sentence manifestly excessive or lenient. The appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentences imposed by the trial court are upheld.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO.60 OF 2013
JAMES WANDERA AGWATA………………….………………APPELLANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
(An Appeal arising out of the conviction and sentence of T.W. Cherere CM delivered on 9th July 2013 in Busia Criminal case no.32 of 2012)
J U D G M E N T
When an Appellate Court is asked to revisit the sentence imposed by a sentencing Court, the argument ought to be that the sentence meted out was either unlawful, made in disregard to principles of sentencing, made in the context of extraneous matters, manifestly excessive or manifestly lenient.
The Appellant herein was convicted on two counts of offences that happened in one transaction on 30th December 2011. He was convicted of Arson contrary to Section 332 (a) of The Penal Code and Malicious Damage to property contrary to Section 339(1) of The Penal Code. Count 1 attracts a maximum sentence of life imprisonment while in Count 2 liability to imprisonment for five years. On count 1, Trial Magistrate imposed a sentence of 36 months imprisonment and on count 2 of 12 months. Sentences were to run concurrently.
Before making the order on sentence the Court invited a plea in mitigation and Counsel for the Appellant prayed;
“I have instructions to plead with court to exercise leniency. Accused is a first offender. The offence can be compensated matter. Accused is a father of 5 children and 3 are still in school. He is the sole bread winner. His family will suffer is he is given a custodial sentence. I ask for a lighter sentence and a non-custodial sentence.
Having considered that mitigation, the Learned Magistrate observed;
“Accused and other not only burnt complainants house but also damaged his goods at his business premises thereby destroying his years of livelihood. Although accused is complainants brother his actions are such that they call for a custodial sentence.”
The Appellant was a first offender and, correctly, the Trial magistrate did not impose maximum sentences. The finding of the Court was that the offences were committed in one transaction and the Trial magistrate, again, was spot on when she imposed concurrent sentences (see Ondiek –vs- Republic [1981] KLR 430]. There were no exceptional circumstances to depart from that general practice. The Trial magistrate not only invited mitigation but also considered it before imposing the sentence. I cannot see where the Learned Magistrate erred. This Appeal is without merit and is hereby dismissed.
F. TUIYOTT
J UD G E
DATED, DELIVERED AND SIGNED AT BUSIA THIS 9TH DAY OF OCTOBER 2014.
IN THE PRESENCE OF:
KADENYI ………………………………………………………COURT CLERK
APPELLANT IN PERSON
OWITI…..…………………………………………………………..FOR STATE