[2008] KEHC 2473 (KLR)
The court found that, although the appellant abused the trust of his employer by stealing Kshs.48,870, his advanced age, plea of guilty, status as a first offender, and serious health condition (diabetes) were significant mitigating factors. The trial court's imposition of a 6-year sentence, just one year short of...
Source-derived case information.
- Citation
- [2008] KEHC 2473 (KLR)
- Parties
- Appellant: John Njogu Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 263 of 2005
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- sentence reduced to term served; appellant to be released forthwith unless otherwise lawfully held
- Judges
- MSA Makhandia
- Legal Topics
- Stealing by Servant, Sentencing Principles, Plea of Guilty, Mitigating Factors, First Offender, Health Conditions in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njogu Kimani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence of 6 years imprisonment for stealing by servant was harsh and manifestly excessive in the circumstances.
- 2 Whether the appellant's plea of guilty, age, first offender status, and health condition warranted a reduction of sentence.
Ratio Decidendi
The court found that, although the appellant abused the trust of his employer by stealing Kshs.48,870, his advanced age, plea of guilty, status as a first offender, and serious health condition (diabetes) were significant mitigating factors. The trial court's imposition of a 6-year sentence, just one year short of the statutory maximum, was deemed harsh and manifestly excessive in the circumstances. The appellate court held that these factors justified interference with the sentence and ordered that the sentence be reduced to the period already served, resulting in the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence reduced to term served; appellant to be released forthwith unless otherwise lawfully held
Orders
- The sentence of 6 years imprisonment is set aside and substituted with a sentence of the term already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 263 of 2005
JOHN NJOGU KIMANI ...................................... APPELLANT
VERSUS
REPUBLIC ...................................................... RESPONDENT
(Appeal from original Conviction and Sentence in the Senior Principal Magistrate’s Court at Murang’a in Criminal Case No. 1902 of 2005 by G. K. Mwaura – P.M.)
J U D G M E N T
The appellant was convicted on his own plea of guilty to a charge of stealing by servant contrary to section 281 of the Penal Code on 7th October 2005 before the Principal Magistrate’s Court at Murang’a and sentenced to 6 years imprisonment.
The appellant now appeals to this court on sentence only. He claims that the sentence imposed on him as aforesaid was harsh and manifestly excessive in view of the fact that he pleaded guilty to the charge, was a first offender, that he was a man of advanced age of 70 years and finally that he suffers from diabetes that is worsening by the day as prison authorities are not in a position to provide him with the medicine for his condition for free. His health might deteriorate therefore if the sentence imposed is fully served. He prayed for its reduction.
Mr. Orinda, learned Principal State Counsel who appeared for the respondent neither opposed nor supported the appeal on sentence. He opted to leave the entire matter to court.
The appellant stole Kshs.48,870/= belonging to his employer. He abused the faith and trust that his employer had placed in him. However the appellant is an old man of over 70 years. He pleaded guilty to the charge and thereby saved the trial court valuable judicial time. That should have counted for something. The appellant appears to be a victim of complicated diabetes mellitus going by what is on record and it appears that the prison is unable to meet the prescribed drugs. It does appear that the appellant has been relying on donations from Catholic Mission Mathari hospital for the medical supplies but now the supply has dried up.
The offence with which the appellant was charged carries a maximum sentence of 7 years. The appellant was however sentenced to 6 years. Taking into consideration all the facts and circumstances of the case, I am of the view that the sentence imposed by the trial court was harsh and manifestly excessive. In the result my interference of it is therefore justified. I reduce the sentence to the term so far served with the consequence that the appellant should be set loose forthwith unless otherwise lawfully held. It is so ordered.
Dated and delivered at Nyeri this 10th day of June 2008
M. S. A. MAKHANDIA
JUDGE