[2009] KEHC 4090 (KLR)
The High Court found that the trial magistrate failed to consider the appellant's mitigation and the fact that the appellant had already spent over a year in custody before sentencing. The court held that these were relevant factors that should have been taken into account. Additionally, the court found that, given...
Source-derived case information.
- Citation
- [2009] KEHC 4090 (KLR)
- Parties
- Appellant: John Mburu Njuguna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 324 of 2007
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal against sentence allowed; sentence reduced.
- Judges
- MSA Makhandia
- Legal Topics
- Sentencing Principles, Robbery Offences, Mitigation, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Mburu Njuguna
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of seven years imprisonment imposed on the appellant was manifestly harsh and excessive.
- 2 Whether the trial court failed to consider relevant factors, including mitigation and time spent in custody, when sentencing the appellant.
Ratio Decidendi
The High Court found that the trial magistrate failed to consider the appellant's mitigation and the fact that the appellant had already spent over a year in custody before sentencing. The court held that these were relevant factors that should have been taken into account. Additionally, the court found that, given the circumstances of the case and the nature of the property stolen (shoes), the sentence of seven years imprisonment was manifestly harsh and excessive. The court therefore allowed the appeal on sentence, set aside the seven-year sentence, and substituted it with a sentence of three and a half years imprisonment to run from the date of conviction and sentencing.
Court Disposition
Appeal against sentence allowed; sentence reduced.
Orders
- The sentence of seven years imprisonment is set aside.
- The appellant is sentenced to three and a half years imprisonment to run from 14th August, 2007.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal Case 324 of 2007
JOHN MBURU NJUGUNA…....………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………..RESPONDENT
(Appeal against Conviction and Sentence in Senior Resident Magistrate’s Court at Kigumo
in Criminal Case No. 1668 of 2007 dated 14th August 2007 by S. M. Mokua, Senior
Resident Magistrate)
JUDGEMENT
The Appellant, JOHN MBURU NJUGUNA, was charged, tried and convicted of one count of robbery contrary to Section 296(1) of the Penal Code. Upon conviction the Appellant was sentenced to seven years imprisonment. The Appellant was aggrieved by the conviction and sentence, hence this appeal.
When the appeal came up for hearing, the appellant elected to abandon the appeal on conviction but fight the appeal on sentence only. The appeal is one of mercy on the basis that the sentence of seven years imposed on him was manifestly harsh and excessive in all the circumstances of the case.
Of course, this Court has a right to interfere with sentence such as the one before it, if it is satisfied that in coming to that sentence, the trial court did not take into account a relevant factor, or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is manifestly harsh and excessive.
In this case there can be no doubt that the Appellant was a guilty party. The shoes robbed from the Complainant were recovered from the Appellant so soon after the robbery.
However it would appear that the learned magistrate did not at all consider the Appellant’s mitigation. The other relevant thing that the learned Magistrate failed to take into account was that by the time he was sentencing the Appellant on 14th August, 2007, the Appellant had been in custody for over a year, the offence having been committed on 3rd August, 2006. Apart from not taking this relevant factor into account, I think that in all the circumstances of the case, the sentence of seven years imprisonment was manifestly harsh and excessive, considering further what was allegedly stolen.
Accordingly, I allow the appeal against sentence, set aside the sentence of seven years and substitute therefore a sentence of 3 ½ years imprisonment to run from 14th August, 2007, that being the date when the Appellant was convicted and sentenced. To that limited extent, the appeal succeeds.
Dated and delivered at Nyeri this 29th day of January 2009.
M. S. A. MAKHANDIA
JUDGE