[1995] KEHC 88 (KLR)
The court found that the appellant was not eligible for probation as he was not a first offender, having already been convicted and placed on probation in a previous case. The probation officer's recommendation to place the appellant on probation again was erroneous and misleading. The court held that the appellant,...
Source-derived case information.
- Citation
- [1995] KEHC 88 (KLR)
- Parties
- Appellant: John Komu Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 205 of 1994
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- House Breaking, Stealing, Probation Orders, Recidivism, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Komu Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly placed on probation despite being a repeat offender.
- 2 Whether the conviction and sentence for house breaking and stealing were proper in law.
Ratio Decidendi
The court found that the appellant was not eligible for probation as he was not a first offender, having already been convicted and placed on probation in a previous case. The probation officer's recommendation to place the appellant on probation again was erroneous and misleading. The court held that the appellant, having committed another offence while on probation, should have been sentenced to jail or fined. The conviction and sentence for house breaking and stealing were upheld, as the evidence showed the appellant acted in concert with others, possessed stolen property, and had clear mens rea. The appeal was dismissed in its entirety.
Court Disposition
appeal dismissed
Orders
- The appeal against conviction and sentence is dismissed.
- A copy of this judgment to be brought to the attention of the probation officer through the provincial probation officer.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO 205 OF 1994
JOHN KOMU MWANGI…......................……..APPELLANT
VERSUS
REPUBLIC………..........…..............………..RESPONDENT
(From original Nanyuki Criminal Case No 1091/92)
JUDGMENT
The appellant together with another were duly convicted for an offence of house breaking contrary to section 304(1) and stealing contrary to section 279(b) of the Penal Code. They were both convicted and referred to probation. It is with utmost surprise that probation officer recommended that the two be placed on probation. The 1st accused is now serving a probation sentence but the 2nd accused and present appellant had been placed on probation for one year on the 11. 8.93 in case No 2294/93 at Nanyuki. Despite knowing this a probation officer – one Wahome Gachare of Laikipia recommended that he be placed on probation despite having been already convicted and placed on probation. He knew this was not in order and instead recommended he be discharged but stated that he continue to serve probation in case 2294/93.
This information to the trial magistrate is wholly misleading. The law is very clear – namely that to be placed on probation one must be a 1st offender (as far as possible previous convictions of the offence must be made available to court to determine this). The minute the appellant was convicted it only meant one thing, and that the appellant had contravened the orders under case 2294/93. he ought to have been partnered to jail for the said offence or alternatively fined as it was a misdemeanour.
By informing the court that the appellant could be discharged is misleading the court and the probation officer has failed to uphold his professional integrity. It is as a result of this that this High Court makes orders that a copy of this judgment be brought to the officer’s attention through the provincial probation officer. The appellants case is that he appealed because the co-accused was released. This court notes that he had been placed on probation but that this was cancelled when he was subsequently convicted for another 3rd offence, apart from one already mentioned. The court on looking at the merits of this case finds that the appellant and others acted in concert. Their mens rea as to the offence was most definitely clear. They were seen by witnesses in possession of the stolen item, knowingly that the same was stolen. The court hereby dismisses this appeal as to conviction and sentence.
Dated and delivered at Nyeri this 11th day of October, 1995
M.A. Ang’awa
JUDGE