[2002] KEHC 444 (KLR)
The High Court found that the trial magistrate exercised proper sentencing discretion in imposing 18 months imprisonment and two strokes of the cane after the appellant breached probation by committing a similar offence within two months. The sentence was well within the statutory maximum of seven years and corporal...
Source-derived case information.
- Citation
- [2002] KEHC 444 (KLR)
- Parties
- Appellant: Julius Nzae; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 252 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Breach of Probation, Hotel Breaking, House Breaking, Repeat Offender
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Nzae
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 18 months imprisonment and two strokes of the cane for hotel-breaking was lawful and appropriate.
- 2 Whether the trial magistrate erred in sentencing the appellant after breach of probation terms.
- 3 Whether the appellant's age was properly considered in sentencing.
Ratio Decidendi
The High Court found that the trial magistrate exercised proper sentencing discretion in imposing 18 months imprisonment and two strokes of the cane after the appellant breached probation by committing a similar offence within two months. The sentence was well within the statutory maximum of seven years and corporal punishment. The court noted that the appellant's age was confirmed by medical examination and was properly considered. No error of law or principle was found in the lower court's approach, and thus there was no basis for appellate interference with the sentence imposed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of 18 months imprisonment and two strokes of the cane is confirmed.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO. 252 OF 2001 (From Original Conviction and Sentence in Criminal Case No.370 of 2001 of the Resident Magistrate’s Court at Voi –E.N. Maina, Ms –S.R.M.)
JULIUS NZAE………………………………………………..APPELLANT =V E R S U S= REPUBLIC…………………………………………………RESPONDENT
J U D G M E N T
The Appellant appeals against the sentence of 18 months and two strokes of the cane meted out to him for the commission of the offence of hotel-breaking. He was originally sentenced to serve a probation sentence of 3 years. He decided to break the terms of the probation by committing a fresh deliberate offence of house-breaking and stealing therefrom. When he pleaded guilty to the fresh offence, and was sentenced, it became imperative as provided under the law that he should be punished for the first offence.
He now appeals as stated above.
The maximum sentence provided under the law is 7 years together with strokes of a cane. The lower court gave him 18 months together with 2 strokes of the cane. This court has looked at the lower court record. The trial Magistrate considered the fact that the Appellant had breached the terms of the probation by repeating the offence only two months after being let out. In my opinion the Appellant deserved a greater sentence than 18 months and two canes. However, the Magistrate was entitled to give what he thought the case deserved. He does not appear to have breached any principles of sentencing. I see no reason to interfere with the sentence which I here confirm. The issue of age was settled by the doctor’s medical examination which confirms that the Appellant was 18 years when he committed the offence. This appeal is dismissed.
Dated and delivered at Mombasa on the 6th day of May, 2002. D. A. ONYANCHA J U D G E