[2014] KEHC 3160 (KLR)
The court found that the sentence of five years imprisonment for attempted theft of a battery valued at Kshs. 6,000 was harsh and excessive, particularly as the appellant was a first offender. The trial magistrate failed to consider alternative sentencing options, such as a non-custodial sentence, and did not call...
Source-derived case information.
- Citation
- [2014] KEHC 3160 (KLR)
- Parties
- Appellant: John Kilonzo Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 64 of 2012
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- sentence reduced to period already served; appellant released unless otherwise lawfully held
- Judges
- BT Jaden
- Legal Topics
- Sentencing Principles, Theft Offences, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kilonzo Mutisya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence of five years imprisonment for attempted theft was harsh and excessive given the circumstances.
- 2 Whether the trial magistrate should have considered non-custodial sentencing options for a first offender.
Ratio Decidendi
The court found that the sentence of five years imprisonment for attempted theft of a battery valued at Kshs. 6,000 was harsh and excessive, particularly as the appellant was a first offender. The trial magistrate failed to consider alternative sentencing options, such as a non-custodial sentence, and did not call for a pre-sentence report. Taking into account the period already served by the appellant, the High Court reduced the sentence to the time already served, thereby ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence reduced to period already served; appellant released unless otherwise lawfully held
Orders
- The sentence of five years imprisonment is set aside and substituted with a sentence of the period already served.
- The appellant is at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 64 OF 2012
JOHN KILONZO MUTISYA …………………….. APPELLANT
VERSUS
REPUBLIC
(Being an appeal from the sentence of Hon. H. Nyakweba (PM) delivered on 25/4/2012 in Kilungu Senior Resident Magistrate’s Court Criminal Case No. 131 of 2011)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
The Appellant, John Kilonzo Mutisya, was charged with the offence of stealing of motor vehicle parts contrary to section 279 (c) of the Penal Code.
The particulars of the offence were that on the 14th day of September, 2011 at Mavivye Junction, along Nairobi-Mombasa Road, Kiima Kiu Location, Malili Division in Mukaa District within Makueni County, stole one battery Serial No. 55D23LMF black in colour from a motor vehicle Reg. No. KBP 469 Q Toyota Rav 4 which was involved in an accident valued at Kshs.6,000/= the property of the Late James Musyoka Mwanzia.
When the Appellant was arraigned in court, he pleaded not guilty. The case proceeded to a full trial. The Appellant was convicted for the offence of attempted theft. The Appellant was sentenced to five (5) years imprisonment.
The Appellant was aggrieved by both the conviction and sentence and appealed to this court. However, during the hearing of the appeal the appeal, the Appellant withdraw his appeal on conviction and stated that he wished to appeal on sentence only. He submitted that the sentence meted out by the trial court was harsh and prayed for a more lenient sentence.
The appeal was opposed by the State. The learned counsel for the State submitted that the sentence was within the law and should not be interfered with.
Taking into account that the value of the stolen battery was 6,000/=, the sentence of five (5) years imprisonment was harsh and excessive. The Appellant was treated as a first offender. The trial magistrate ought to have considered other sentencing options. I opine that the trial magistrate ought to have called for a pre-sentence report to see if the Appellant was suitable for a non-custodial sentence.
The Appellant has been in custody since 24/4/12. The Appellant has therefore served over one year and two months of the sentence. I will reduce the sentence to the period already served. The Appellant is at liberty unless otherwise lawfully held.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 3rdday of July 2014.
………………………………………
B. THURANIRA JADEN
JUDGE