[2017] KEHC 1513 (KLR)
The trial court erred in sentencing the appellant to four years imprisonment for theft, as section 275 of the Penal Code prescribes a maximum of three years unless exceptional circumstances are shown. The facts did not amount to the worst manifestation of theft to justify the maximum sentence, let alone a sentence...
Source-derived case information.
- Citation
- [2017] KEHC 1513 (KLR)
- Parties
- Appellant: Jane Waithera Mutharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 74 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, Theft Offences, Plea of Guilty, Mitigation, Proportionality in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Waithera Mutharia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four years imprisonment imposed on the appellant for theft was lawful and proportionate.
- 2 Whether the trial court properly exercised its discretion in sentencing, considering the appellant's plea of guilty and status as a first offender.
Ratio Decidendi
The trial court erred in sentencing the appellant to four years imprisonment for theft, as section 275 of the Penal Code prescribes a maximum of three years unless exceptional circumstances are shown. The facts did not amount to the worst manifestation of theft to justify the maximum sentence, let alone a sentence exceeding the statutory maximum. The appellant's plea of guilty and status as a first offender were not adequately considered. The High Court therefore set aside the original sentence and substituted it with a sentence of one and a half years imprisonment, effective from the date of conviction.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of four years imprisonment imposed by the trial court is set aside.
- The appellant is sentenced to one and a half years imprisonment, to run from the date of conviction.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO. 74 OF 2017
JANE WAITHERA MUTHARIA.....................................APPELLANT
versus
REPUBLIC....................................................................RESPONDENT
(Being an appeal from the original conviction and sentence inNanyuki
Chief Magistrate’s Court CriminalCase No. 888 of 2016by
Hon. L. MUTAIChief Magistrate on 25th October 2016 )
JUDGMENT
1. JANE WAITHERA MUTHARIA(Jane) was convicted before Nanyuki Chief Magistrate’s Court, on her own plea of guilt, to the offence of theft contrary to section 268 as read with section 275 of the Penal Code. The trial court sentenced her to 4 years imprisonment. Jane being aggrieved by that sentence has filed this appeal.
2. The facts of the case that were confirmed as correct by Jane were that on 23rd July 2016 at Nanyuki town the complainant, Nancy Muthoni Muchiri was telephoned by someone who purported to be an employee of Equity Bank. That person instructed the complainant to switch off her cell phone having the Safaricom line and instructed her to key-in certain information into her Equitel Line to enable it to be updated. The complainant complied and as a result funds were withdraw from her Equity Bank account totaling Kshs.313,566. Some of that money was traced into Jane’s bank account.
3. On being convicted Jane informed the trial court that she had children and pleaded for Mercy. The trial court as stated before sentenced her to 4 years imprisonment. In passing that sentence the trial court stated thus:-
“SENTENCE
The accused person mitigation duly considered. Although a first offender the offence committed is serious. The complainant lost her money to the accused person keen on reaping from others sweats. The offence calls for a stern punishment which punishment will not only deter the accused person but also which will serve as a lesson to her also to the other would be offenders. Accused sentenced to serve four (4) years imprisonment.”
4. Section 275 of the Penal Code, under which Jane was charged provides:-
“275. Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”
5. Whereas sentencing is always at the discretion of the trial court such a court should bear in mind in exercising that discretion the principles of proportionality the need for deterrence and rehabilitation. In this case the section under which Jane was charged, that is Section 275 of the Penal Code, provides that unless owing to circumstances to the theft sentence should be 3 years. In other words the maximum sentence is 3 years unless the circumstances of the theft show otherwise. Justice M. Odero in the case DANIEL JOSEPH KINYANJUI V REPUBLIC [2010]eKLR considered that section and stated:-
“With respect to sentence the Appellant was sentenced to serve three (3) years in prison which is the maximum sentence for this offence. MR. ONSERIO Learned State Counsel did concede this appeal with respect to sentence. As a general rule the maximum sentence should be reserved for the worst possible manifestation of any offence. That can certainly not be said to have been the case here. The trial magistrate ought to have taken into account the fact that the Appellant pleaded guilty thereby saving the court from an unnecessary trial. In my view the 3 year maximum sentence was manifestly harsh and excessive in the circumstances. I therefore set aside this 3 year sentence and substitute a term of twelve (12) months imprisonment.”
6. Do the facts of this case show the worst manifestation of the offence? In my view they do not. I agree with statements of the trial court that through the act of Jane the complainant lost her money but in my view it was not the “worst manifestation” of the theft. It is because of the above finding that the appeal against sentence succeeds.
7. The trial court sentence is hereby set aside. The appellant Jane Waithera Mutharia who was a first time offender is hereby sentenced to one and half years imprisonment which sentence shall start to run from the date of her conviction.
DATED and DELIVERED at NANYUKI this 29th day of NOVEMBER 2017
MARY KASANGO
JUDGE
CORAM
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
Appellant: Jane Waithera Mutharia …………
For the State: ….................................................
Language: …………………………………
COURT
Judgment delivered in open court.
MARY KASANGO
JUDGE