[2009] KEHC 740 (KLR)
The High Court found that the trial magistrate failed to consider the appellant's status as a first offender and the relatively minor amount stolen (Kshs.3163/=) when imposing a custodial sentence of 2½ years. The court held that these were relevant factors that should have been taken into account in the exercise of...
Source-derived case information.
- Citation
- [2009] KEHC 740 (KLR)
- Parties
- Appellant: James Waro Nyakego; Respondent: State
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- AO Muchelule
- Legal Topics
- Sentencing Principles, Stealing by Agent, Exercise of Discretion, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Waro Nyakego
Appellant
State
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 2½ years imprisonment for stealing by agent was manifestly excessive in the circumstances.
- 2 Whether the trial court properly exercised its discretion in sentencing a first offender to a custodial sentence for a minor amount.
Ratio Decidendi
The High Court found that the trial magistrate failed to consider the appellant's status as a first offender and the relatively minor amount stolen (Kshs.3163/=) when imposing a custodial sentence of 2½ years. The court held that these were relevant factors that should have been taken into account in the exercise of sentencing discretion. The absence of aggravating circumstances and the minor nature of the offence did not warrant a custodial sentence. The sentence imposed was therefore manifestly harsh and excessive. The court set aside the custodial sentence and substituted it with a fine of Kshs.10,000/=, with a default sentence of three months imprisonment.
Court Disposition
appeal_allowed
Orders
- The sentence of 2½ years imprisonment is set aside.
- The appellant shall pay a fine of Kshs.10,000/=, failing which he shall serve 3 months in jail.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Appeal 64 of 2009
(From original conviction and sentence in the Senior Resident
Magistrate’s Court at Keroka in Criminal Case No.959 of 2008 by
P. NDEGE ESQ., RM)
JAMES WARO NYAKEGO …………………………. APPELLANT
VERSUS
STATE ……………………………………………… RESPONDENT
JUDGMENT
The appellant was convicted by the Resident Magistrate, Keroka of stealing by agent contrary to section 283 (b) of the Penal Codewhose particulars were that on 20/11/07 at Risa village of Nyatieno sub location in Masaba District within Nyanza Province he stole cash Kshs.3163/= which he had been entrusted to him as treasurer of Risa Primary School to pay for the school’s post office rental box. He was sentenced to serve 2½ years imprisonment.
He was aggrieved by the conviction and sentence and preferred this appeal. However, appeal against conviction was abandoned which left appeal against the sentence.
The appeal is based on the ground that the sentence was manifestly excessive. Mr. Ayuka represented the appellant whereas Mr. Kemo was acting for the Republic. Mr. Kemo conceded the appeal.
The trial court exercised its discretion when it sentenced he accused to 2½ years in jail. The appellate court should not interfere with that discretion unless it can be shown the court did not take into account a relevant factor, or that it took into account an irrelevant factor, or that the sentence imposed was manifestly harsh and excessive in the circumstances of the case (Wanjema v. Republic [1971) EA 493).
The appellant was a first offender. There was no particular reason why the trial magistrate thought that such an offender should receive custodial treatment (Sayeko v. R [1989] KLR 306).The offence was not grave or aggravated for the appellant to be subjected to shock therapy. Secondly, the amount stolen was only Kshs.3163/=. The court did not take that into account. It was not proper exercise of discretion for the court to fail to consider the sum before settling on the sentence. In short, the appellant did not deserve to be sent to jail for 2½ years for the amount (Ambani v. Republic [1990] KLR 161). The sentence was therefore manifestly harsh in the circumstances.
The appeal is allowed. The sentence of 2 ½ years is set aside and in its place the appellant shall pay a fine of Kshs.10,000/= failing which he shall serve 3 months in jail.
Dated, signed and delivered at Kisii this 14th day of October, 2009
A.O. MUCHELULE
JUDGE
14/10/2009
Before Hon. A.O.Muchelule-Judge
Court clerk-Mongare
Mr. Nyawencha for Mr. Anyonka for Appellant
Appellant-present
COURT: Judgment in open court.
A.O.MUCHELULE
JUDGE
14/10/2009