[2015] KEHC 5954 (KLR)
The appellate court found that the sentences imposed by the trial court were lawful and within the statutory limits. The trial court exercised its discretion appropriately by not imposing the maximum sentences, particularly as the appellant was a first offender. There was no evidence that the trial court overlooked...
Source-derived case information.
- Citation
- [2015] KEHC 5954 (KLR)
- Parties
- Appellant: John Chemasia Kadima; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 75 of 2012
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Appeal Against Sentence, Discretion of Trial Court, Penal Code Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Chemasia Kadima
Appellant
Republic of Kenya
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was lawful and appropriate in the circumstances.
- 2 Whether the appellate court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The appellate court found that the sentences imposed by the trial court were lawful and within the statutory limits. The trial court exercised its discretion appropriately by not imposing the maximum sentences, particularly as the appellant was a first offender. There was no evidence that the trial court overlooked any material factor, considered any immaterial factor, acted on a wrong principle, or imposed a manifestly excessive sentence. Therefore, the appellate court declined to interfere with the sentence and dismissed the appeal as lacking merit.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentences imposed by the trial court are upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
HIGH COURT CRIMINAL APPEAL NO. 75 OF 2012
JOHN CHEMASIA KADIMA…………...……….APPELLANT
VERSUS
REPUBLIC OF KENYA…………...……………RESPONDENT
(AN APPEAL ARISING OUT OF THE SENTENCE OF M. MUNYEKENYE, SRM DELIVERED ON 24TH JULY 2012 IN BUSIA CRIMINAL CASE NO. 1405 OF 2011)
J U D G M E N T
1. John Chemasia Kadima (The Appellant)was convicted by The Subordinate Court on Seven (7) counts of Breaking into a Building and Committing a Felony contrary to Section 306 of The Penal Code and on one Count of Burglary and Stealing contrary to Section 304 (2) as read with Section 279(b) of The Penal Code. In respect to the latter conviction, the Appellant was sentenced to serve five (5) years imprisonment. While in respect to the other Counts, the Appellant was sentenced to serve three (3) years imprisonment on each Count. It was further ordered that the jail terms run concurrently. This Appeal is against sentence only.
2. The decision in Wanjema vs Republic [1971] EA 494 makes this important holding:-
“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case”.
3. A person who commits an offence of Breaking into Building and Committing a Felony under Section 306 of The Penal Code is liable to imprisonment for seven (7) years. An offence under Section 304(2) attracts maximum imprisonment for ten (10) years and that under Section 279(b) attracts maximum imprisonment for fourteen (14) years.
4. For the offences under Section 306, the Court imposed imprisonment for three (3) years and for the offence under Section 304(2) as read with Section 279(b) the Court imposed a jail term of five (5) years. All the jail terms were to run concurrently. The sentences imposed by the Sentencing Court were lawful. In addition, as the Accused person was a first offender, the Court did not impose the maximum sentences. If I heed the decision of Wanjema (supra) then I cannot interfere with the Sentencing Courts Discretion. The answer to this Appeal is that it lacks merit and is hereby dismissed.
DATED, SIGNED AND DELLIVERED AT BUSIA THIS 5TH DAY OF MARCH 2015.
F. TUIYOTT
J U D G E
IN THE PRESENCE OF:
KADENYI………………………………..………………………COURT CLERK
PRESENT IN PERSON………………………………FOR THE APPELLANT
OWITI….……………….…..……….……………FOR THE RESPONDENT