[2019] KEHC 3002 (KLR)
The court found that while the appellant had pleaded guilty and served a significant portion of his sentence, community-based rehabilitation was not feasible due to his lack of fixed abode and negative sentiments from the community. However, the court determined that the appellant should not benefit from the...
Source-derived case information.
- Citation
- [2019] KEHC 3002 (KLR)
- Parties
- Appellant: Joseph Githinji Ngige; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 5 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appellant to be released upon payment of fine
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Theft Offences, Mitigation, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Githinji Ngige
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive in the circumstances of the appellant.
- 2 Whether the appellant should benefit from a non-custodial sentence despite negative probation report.
- 3 Whether the proceeds of the crime should be recovered through a fine.
Ratio Decidendi
The court found that while the appellant had pleaded guilty and served a significant portion of his sentence, community-based rehabilitation was not feasible due to his lack of fixed abode and negative sentiments from the community. However, the court determined that the appellant should not benefit from the proceeds of his crime and that a good motive does not excuse theft. Balancing these factors, the court altered the sentence to the period already served in custody and imposed a fine equivalent to the value of the stolen property, with a default custodial term, thereby ensuring both punishment and deprivation of criminal benefit.
Court Disposition
sentence varied; appellant to be released upon payment of fine
Orders
- The sentence of the trial court is altered to imprisonment for the period already served and a fine of Ksh.35,000/=.
- In default of payment of the fine, the appellant shall serve imprisonment for 6 months.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CRIMINAL APPEAL NO. 5 OF 2019
JOSEPH GITHINJI NGIGE...............................APPELLANT
VERSUS
REPUBLIC........................................................RESPONDENT
[An appeal from the original conviction and sentence of the Senior Principal Magistrate’s Court at Kabarnet Criminal Case no. 1101 of 2018 delivered on the 7th day of January, 2019 by by Hon. S.O. Temu, PM]
JUDGMENT
1. The appellant who pleaded guilty to the offence of theft contrary to section 275 of the Penal Code, and was convicted and sentenced to imprisonment for 2 years on 7/1/2019 has appealed from the sentence seeking a reduction of the sentence citing breadwinner role.
2. In his mitigation before the trial Court, the appellant had said that:
“I took the water pump generator [subject of the theft] and sold it to pay for my wife’s hospital bills. I pray for leniency. I am remorseful”.
3. The DPP did not oppose the appeal, and observing that the appellant had at the time of the hearing on 18/9/19 served 8 months of the 2 years sentence, urged that “he has served a substantial portion of the sentence and he may serve the remainder of the sentence on non-custodial terms”.
4. A pre-sentence Report by the Probation Office dated 1/10/2019, was negative, recommending that:
“Given the negative sentiments from the victim, the local Administration and the immediate neighbours coupled with the fact that the appellant is a vagrant with no fixed abode, his rehabilitation with the community would be difficult. It is my opinion that this case may be dealt with otherwise.
Kiprono M.K
Probation Officer.
Baringo Sub-County
01/10/2019”.
5. The Court is alive to need for caution in wholesale accepting the Probation Officer’s Report as counseled by the Court of Appeal inKyalo v. R(2009) KLR 325 on account of lack of any testing of the report by way of cross-examination. However, when invited to submit on the Report, Counsel for the DPP left the matter to the Court and the appellant only said that he used to live at Marigat and prayed for leniency.
6. At the time of the judgment herein the appellant will have served almost 10 months of the 16 months sentence, with remission on the 24 months actual sentence.
7. In the circumstances of this case where the non-custodial community based rehabilitation is difficult on account of the appellant’s want of fixed abode, and noting that the appellant was, according to the facts which he accepted, arrested at the border town of Isibania after disappearing from his father’s home, the Court must give him benefit of doubt as to his mitigation and consider other forms of non-custodial sentence even though community-based rehabilitation be difficult.
8. It is an objective of punishment that the offender should not benefit from his criminal act and the Court may when considering a punishment seek to take away any benefit of the crime. The appellant in this case stole a water pump generator and sold it for his own purposes, which may have included the professed payment of his wife’s hospital bills. A good motive is, however, no excuse of crime. See section 9 (3) of the Penal Code.
9. The Court shall take away the benefit of the proceeds of sale of the water pump generator by requiring the appellant to pay as fine in addition to the period of 10 months already served in custody a fine of Ksh.35,000/=, the stated value of the water pump generator, and in default to serve imprisonment for 6 months.
Orders
10. Accordingly, for the reasons set out above, the Court pursuant to section 354 (3) (b) of the Criminal Procedure Code, alters the sentence of the trial Court to an imprisonment term for the period already served together with a fine of Ksh.35,000/= and on default of payment to imprisonment term for 6 months, in terms of section 26 (3) of the Penal Code, which allows imposition of a fine in addition to an imprisonment term.
11. There shall, therefore, be an order for release of appellant upon his payment of the fine of Ksh.35,000/=.
Order accordingly.
DATED AND DELIVERED THIS 28TH DAY OF OCTOBER 2019.
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent.