[2016] KEHC 2811 (KLR)
Although the sentence of five years imprisonment was lawful under Section 278 of the Penal Code, the court found that the trial magistrate failed to adequately consider the appellants' status as first offenders and the possibility of imposing a fine. The court held that, in the circumstances, a custodial sentence...
Source-derived case information.
- Citation
- [2016] KEHC 2811 (KLR)
- Parties
- Appellant: Kamau Lesingiran; Appellant: Jesin Lobuk; Appellant: Jacob Labaru Letarkush alias Jamal; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- JV Juma
- Legal Topics
- Sentencing Principles, Plea of Guilty, Stock Theft, Mitigation, First Offender, Penal Code Section 278
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Lesingiran
Appellant
Jesin Lobuk
Appellant
Jacob Labaru Letarkush alias Jamal
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive given the appellants were first offenders.
- 2 Whether an option of a fine ought to have been considered in lieu of custodial sentence.
Ratio Decidendi
Although the sentence of five years imprisonment was lawful under Section 278 of the Penal Code, the court found that the trial magistrate failed to adequately consider the appellants' status as first offenders and the possibility of imposing a fine. The court held that, in the circumstances, a custodial sentence was excessive and that justice would be better served by substituting the sentence with a fine. The court therefore set aside the custodial sentence and imposed a fine of Ksh 8,000 on each count for each appellant, with a default sentence of one year imprisonment if the fine is not paid. The sentences were to run from the date of conviction in the trial court.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal against sentence is allowed.
- The custodial sentence imposed by the trial court is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 16 OF 2015
KAMAU LESINGIRAN...….....…………..……….......….….1ST APPELLANT
JESIN LOBUK ………………………………………....…… 2ND APPELLANT
JACOB LABARU LETARKUSH alias JAMAL …............. 3RD APPELLANT
VERSUS
REPUBLIC.…………………………………...................……..PROSECUTOR
(Appeal from the Judgment of the Principal Magistrate’s Court at Mararal Hon C. N Ndegwa - Principal Magistrate delivered on the 15th December 2015 CMCR Case No. 903 of 2014)
JUDGMENT
The three appellants KAMAU LESINGIRAN, (1st Appellant) LESIN LOBUK (2nd Appellant) and JACOB LABARU LETARKUSH alias JAMAL were all charged at the Maralal Law Courts with the two counts of STEALING STOCK CONTRARY TO SESCTION 278 PENAL CODE. All three appellants pleaded guilty to the charge. The facts were duly read out to them and all three accepted the facts as read out. The trial court then convicted the appellants on both counts. They were all allowed an opportunity to mitigate after which they were each sentenced to serve five (5) years imprisonment on each count. The sentences were ordered to be served concurrently.
Each appellant filed an appeal which was later consolidated. On the date the appeal came up for hearing all the three appellants indicated that they did not seek to challenge their convictions. They were only appealing against the sentences imposed which they termed as harsh and excessive.
MS NYAKIRA learned Stated Counsel opposed the appeal. She submitted that all three appellants having pleaded guilty were properly convicted.
I have considered the appeal against sentence. The maximum penalty for the offence is 15 years. The facts reveal that the livestock stolen were slaughtered by the appellants (probably in order to sell the meat) thus no recovery was made. The 5 year sentence imposed was lawful but in view of the fact that all three were first offenders an option of a fine ought to have been considered.
I do allow this appeal and I set aside the sentence imposed by the trial court. In its place I substitute a fine of Ksh 8,000/= on each count for each accused making a total of 16,000/= fine each, in default to serve one (1) year imprisonment. The sentences to run from the date of conviction in the trial court. It is so ordered.
Dated in Nakuru this 29th day of July, 2016
Appellants all in person
Ms Rugut for the DPP
Maureen Odero
Judge
29/7/2016