[2013] KEHC 1335 (KLR)
The court found that the sentence of 72 months imprisonment or a fine of Kshs. 200,000 imposed on the appellant for stealing by agent was within the statutory maximum provided by Section 283(b) of the Penal Code. The trial court had considered the appellant's mitigation, including his plea of guilty and his health...
Source-derived case information.
- Citation
- [2013] KEHC 1335 (KLR)
- Parties
- Appellant: John Nyongesa Kundu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 136 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Stealing by Agent, Mitigation, Penal Code Section 283b
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nyongesa Kundu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for stealing by agent was harsh or excessive.
- 2 Whether the trial court properly considered the appellant's mitigation before sentencing.
Ratio Decidendi
The court found that the sentence of 72 months imprisonment or a fine of Kshs. 200,000 imposed on the appellant for stealing by agent was within the statutory maximum provided by Section 283(b) of the Penal Code. The trial court had considered the appellant's mitigation, including his plea of guilty and his health condition. There was no evidence that the appellant had refunded the stolen amount of Kshs. 1,440,000. The appellate court held that the sentence was not harsh or excessive in the circumstances and was, in fact, lenient given the amount involved. Consequently, there was no justification to interfere with the sentence, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentence of the lower court is upheld.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO.136 OF 2012
[Arising from Judgement of Hon. Cherono (SPM) in Webuye SPM's Court criminal case No. 855 of 2011]
JOHN NYONGESA KUNDU................................. APPELLANT
VERSUS
REPUBLIC................................................... RESPONDENT
JUDGMENT
The Appellant was convicted of the offence of stealing by agent contrary to Section 283 (b) of the Penal Code. He was sentenced to pay a fine of Kshs. 200,000/= in default serve 72 months imprisonment. The Appellant initially pleaded not guilty to the offence but later in the course of trial, he changed his plea to guilty. His appeal is therefore only sentence.
He pleaded with this court to reconsider the sentence. He felt the sentence was harsh and he is sick. The trial court considered the Appellant's mitigation while passing the sentence. The Appellant had unlawfully obtained Kshs. 1,440,000/. In the proceedings there was indication of attempt to negotiate the matter, however the record does not show whether the Appellant refunded this money or not.
The law provides for a maximum sentence of 7 years for the offence under Section 283 (b) of the Penal Code. The Appellant benefitted from the money and the sentence given of 72 months is within the Law. I find no reason to interfere with it. It was lenient given the circumstance of the case. In the result I uphold the decision of the Lower Court as regards sentence. The appeal is hereby dismissed.
Dated and Deliveredin open court this 7th day of November 2013.
A. OMOLLO
JUDGE.