[2015] KEHC 8534 (KLR)
The High Court found that while the trial magistrate considered the appellant's status as a first offender and the prevalence of the offence, further consideration of the appellant's remorse and age was warranted. The pre-bail report indicated that a non-custodial sentence was unsuitable due to the appellant's loose...
Source-derived case information.
- Citation
- [2015] KEHC 8534 (KLR)
- Parties
- Appellant: John Sammy Asewe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Legal Topics
- Sentencing Principles, Stealing Motor Vehicle Parts, Penal Code Section 279c, First Offender Considerations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Sammy Asewe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive or based on wrong principles.
- 2 Whether the appellant's status as a first offender and his personal circumstances warranted a reduction of sentence.
Ratio Decidendi
The High Court found that while the trial magistrate considered the appellant's status as a first offender and the prevalence of the offence, further consideration of the appellant's remorse and age was warranted. The pre-bail report indicated that a non-custodial sentence was unsuitable due to the appellant's loose community ties. However, the court determined that the original sentence of four years was excessive in the circumstances and reduced it to two years' imprisonment from the date of the original sentence, balancing the need for deterrence with the appellant's mitigating factors.
Court Disposition
sentence reduced
Orders
- The appellant's sentence is reduced to two years' imprisonment from the date of the original sentence.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 21 OF 2015
BETWEEN
JOHN SAMMY ASEWE ……………………………......................................... APPELLANT
AND
REPUBLIC ………………...….....…………………………………………... RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. N. Kariuki, RM in Homa Bay Chief Magistrates Court Criminal Case No. 1037 of 2014 dated 11th December 2014)
JUDGMENT
The appellant, JOHN SAMMY ASEWE, was charged with the offence stealing motor vehicle parts contrary to section 279(c) of the Penal Code (Chapter 63 of the Laws of Kenya). He pleaded guilty and was convicted and sentenced to 4 years imprisonment. The appellant’s appeal is against the sentence.
In the petition grounds filed on 9th April 2015, he urges the court to consider that he was a first offender and that consideration should be given to his age and the fact that he has now reformed.
Sentencing is essentially the discretion of the sentencing court. An appellate court will be slow to interfere with the exercise of that discretion unless it is shown that the sentencing court took into account an irrelevant factor or that it failed to take into account a relevant factor, or that it applied a wrong principle or short of these the sentence is so harsh and excessive that an error of principle must be inferred.
The main consideration the learned magistrate took into account was that the appellant was a first offender and that the offence was prevalent in the area. I have also looked at the pre-bail report filed in the subordinate court and it shows that a non-custodial sentence was not suitable since the appellant had loose ties to the community.
Given the fact that the appellant expressed remorse and considering his age, I reduce the term of imprisonment to 2 years from the date of sentence.
DATED and DELIVERED at HOMA BAY this 30th November 2015.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.