[2004] KEHC 889 (KLR)
The High Court found that the trial magistrate erred by imposing the maximum sentence on counts 1 and 2 without considering the appellant's plea of guilty, first offender status, and mitigating circumstances. The court also held that the sentence for count 3 was unlawful as it exceeded the statutory maximum under...
Source-derived case information.
- Citation
- [2004] KEHC 889 (KLR)
- Parties
- Appellant: Jane Wanjiku Gathuku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 398 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GG Okwengu
- Legal Topics
- Sentencing Principles, Mitigation, Plea of Guilty, Unlawful Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjiku Gathuku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive given her plea of guilty and mitigating circumstances.
- 2 Whether the sentence for count 3 exceeded the maximum allowed under section 389 of the Penal Code.
Ratio Decidendi
The High Court found that the trial magistrate erred by imposing the maximum sentence on counts 1 and 2 without considering the appellant's plea of guilty, first offender status, and mitigating circumstances. The court also held that the sentence for count 3 was unlawful as it exceeded the statutory maximum under section 389 of the Penal Code. The court concluded that the sentences were manifestly excessive and substituted them with a sentence equivalent to the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The sentences imposed in respect of each count are set aside.
- The sentence for each count is substituted with a sentence equivalent to the period already served.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE HIGH COURT OF KENYA
AT NYERI
HIGH COURT CRIMINAL APPEAL NO. 398 OF 2003
JANE WANJIKU GATHUKU …………………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………………….. RESPONDENT
(Appeal from Original Judgment and Conviction in Princi pal Magistrate’s Court Criminal Case No. 2380 of 2003 dated 7 th November 2003 by Mr. J. N. Onyiego –R.M. –Kerugoya)
J U D G M E N T
Jane Wanjiku Gathuku hereinafter referred to as the Appellant was convicted by the Resident Magistrate Kerugoya on her own plea of guilty to three offences as follows: Forgery contrary to section 349 of the Penal Code, uttering a false document contrary to section 353 as read with section 389 of the Penal Code, and Attempting to Obtain money by false pretences contrary to section 313 as read with section 389 of the Penal Code. She was sentenced to serve 3 years imprisonment on each count. She has now appealed against her sentence contending that the same was excessive and that the trial magistrate failed to take her mitigation into account.
The Appellant further maintains that the sentence in respect of count 3 was unlawful as it was more than that provided under section 389 of the Penal Code. It is apparent that in respect of count 1 and 2 the Appellant was sentenced to the maximum sentence provided which is 3 years. The trial magistrate does not appear to have taken note of the fact that the Appellant was a 1st offender or the fact that she had pleaded guilty or her mitigating circumstances. The trial magistrate appears to have been influenced by his conclusion that the Appellant was not remorseful and yet there is no lack of remorse evident on the court record. I concur with the Appellants advocate that the sentence imposed was manifestly excessive.
I further find that the sentence in respect of count 3 was indeed unlawful as it was more that that provided under section 389 of the Penal Code. I do therefore allow this appeal set aside the sentences imposed in respect of each count and substitute thereof an order that the sentence of the Appellant in respect of each count shall be reduced to the period already served.
The Appellant shall therefore be forthwith released unless otherwise lawfully held.
Dated at Nyeri this 19th day of November 2004
H. M. OKWENGU
JUDGE