[2018] KEHC 6165 (KLR)
The court found that the trial magistrate erred by imposing the maximum sentence of three years for stealing on a first offender who pleaded guilty and expressed remorse. The court held that mitigating factors, including the appellant's plea of guilty and first offender status, warranted a reduction of the sentence....
Source-derived case information.
- Citation
- [2018] KEHC 6165 (KLR)
- Parties
- Appellant: Justo Mwathee Kirema; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 91 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on sentence allowed in part; sentence reduced and ordered to run concurrently.
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Plea of Guilty, First Offender, Stealing, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justo Mwathee Kirema
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for stealing was harsh and excessive in the circumstances.
- 2 Whether the trial magistrate erred by imposing the maximum sentence on a first offender who pleaded guilty.
- 3 Whether the sentences should run concurrently or consecutively.
Ratio Decidendi
The court found that the trial magistrate erred by imposing the maximum sentence of three years for stealing on a first offender who pleaded guilty and expressed remorse. The court held that mitigating factors, including the appellant's plea of guilty and first offender status, warranted a reduction of the sentence. The court also determined that both offences arose from the same transaction and thus the sentences should run concurrently. The sentence for stealing was reduced from three years to two years' imprisonment, and both sentences were ordered to run concurrently.
Court Disposition
Appeal on sentence allowed in part; sentence reduced and ordered to run concurrently.
Orders
- The sentence of three years' imprisonment for stealing is quashed and substituted with two years' imprisonment.
- Both sentences shall run concurrently.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 91 OF 2017
CORAM: D.S. MAJANJA J.
BETWEEN
JUSTO MWATHEE KIREMA............................APPELLANT
AND
REPUBLIC.........................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon.D. N. Ogoti, CM dated 14th August 2017 at the Chief Magistrate’s Court at Maua in Criminal Case No. 1953 of 2017)
JUDGMENT
1. The appellant, JUSTO MWATHE KIREMA was charged and convicted on his own plea of guilty for the offence of creating disturbance in a manner likely to cause a breach of the peace contrary tosection 95 (1) (b)of thePenal Code (Chapter 63 of the Laws of Kenya) and also stealing contrary tosection 268as read withsection 275of thePenal Code.
2. The appellant was sentenced to 6 months’ imprisonment on the first count and 3 years’ imprisonment on the second count. The trial magistrate did not specify whether the sentences were to run concurrently or consecutively. Although he has appealed against conviction and sentence, at the hearing of the appeal the appellant told the court that he did not wish to proceed with the appeal.
3. I have considered the matter and I am constrained to intervene in the sentence on the second count as it is not only harsh but excessive. The maximum sentence for stealing under section 275 of the Penal Code is 3 years’ imprisonment. In the sentencing notes the trial magistrate agreed that the facts fitted the offence of robbery with violence contrary to section 296 (2) of the Penal Code hence the appellant was lucky and as such a stiff sentence warranted.
4. In this case though, the appellant was charged with stealing and he pleaded guilty. These were mitigating factors which the trial magistrate did not consider. Moreover, it is not proper to impose the maximum sentence on a first offender as was held in .Josephine Arissol v R [1957] EA 447 that, “The general rule is that a maximum sentence should not be imposed on a first offender”.
5. I discount the maximum sentence by the fact that the appellant was a first offender and that he pleaded guilty and expressed remorse. However, like the trial magistrate, I find that the offence was aggravated as the appellant stole miraa by threatening the complainant with four men.
6. The sentence of three years’ imprisonment is quashed and substituted with one of two (2) years imprisonment. As both counts relate to offences that were committed in the same transaction, both sentences shall run concurrently.
DATED and DELIVERED at MERU this 6th day of June 2018.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Kiarie, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.