[2004] KEHC 1027 (KLR)
Although the sentence of 4 years imprisonment was lawful under Section 305(1) of the Penal Code, the court found it to be on the higher side given the appellant's status as a first offender, his remorse, and the fact that he was seriously beaten and injured during arrest. The court held that these mitigating factors...
Source-derived case information.
- Citation
- [2004] KEHC 1027 (KLR)
- Parties
- Appellant: Johana Musyoka Kioko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 129 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal otherwise dismissed
- Legal Topics
- Sentencing Principles, Plea of Guilty, First Offender, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Musyoka Kioko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 4 years imprisonment imposed on the appellant was harsh in the circumstances.
- 2 Whether the appellant's status as a first offender and the injuries sustained during arrest warranted a reduction of sentence.
Ratio Decidendi
Although the sentence of 4 years imprisonment was lawful under Section 305(1) of the Penal Code, the court found it to be on the higher side given the appellant's status as a first offender, his remorse, and the fact that he was seriously beaten and injured during arrest. The court held that these mitigating factors warranted a reduction of the sentence to one year imprisonment. The appeal was otherwise dismissed, with the substituted sentence imposed.
Court Disposition
sentence varied; appeal otherwise dismissed
Orders
- The sentence of 4 years imprisonment is set aside and substituted with one (1) year imprisonment.
- Save for the substituted sentence, the appeal is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CR.APPEAL NO. 129 OF 2004
(Being an appeal from Original Criminal Conviction and sentence in Criminal Case
No.264 of 2004 of the Resident Magistrate's Court at Kaloleni –Andayi –W.F. –
RMJOHANA MUSYOKA KIOKO ……………………………………… APPELLANTVERSUSREPUBLIC …………………………………………………………... RESPONDENTCoram: Before Hon. Justice Mwera
Ademba for the State
In person Appellant, present
Court clerk –Sango
J U D G M E N T
The appellant was charged under S. 305(1) Penal Code in that on 1-4-2004 at Kaliang’ombe Kilifi he entered a dwelling house of Dena Mwaringa with intent to commit a felony of theft therein. He pleaded guilty in what appears a regular plea whereupon a prison term of 4 years was imposed.
By the petition of appeal herein, it was stated that the appellant was remorseful, the sole breadwinner and a first offender. That the appellant was an aged person and the sentence was harsh.
The learned State Counsel seemed to agree with the appellant noting that besides being a first offender, the appellant was seriously beaten and injured by the members of the public at the time of his arrest.
The offence under S.305 (1) Penal Code carries a maximum term of 5 years in prison. Here the learned trial magistrate handed down some 4 years – no doubt a lawful sentence but seemingly on the higher side. In the circumstances of this case that sentence is set aside and substituted with one of one (1) year imprisonment. Had the appellant not been imprisoned his case should have appropriately been one of community service order. Save for the substituted sentence, this appeal is dismissed.
Judgment delivered on 15th November, 2004. J.W. MWERAJUDGE