[2014] KEHC 8820 (KLR)
The court found that the sentence of 10 years imprisonment for a first offender who pleaded guilty, expressed remorse, and where the stolen property was recovered, was manifestly harsh and excessive. Furthermore, convicting and sentencing the appellant on an alternative count was improper since the main count had...
Source-derived case information.
- Citation
- [2014] KEHC 8820 (KLR)
- Parties
- Appellant: Kennedy Ochieng Ongolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 76 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction on alternative count set aside; sentence on main count reduced to time served; appellant released unless otherwise lawfully held.
- Judges
- DAS Majanja
- Legal Topics
- Stock Theft, Sentencing Principles, Alternative Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ochieng Ongolo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant was harsh and excessive.
- 2 Whether conviction on the second count as an alternative count was proper.
Ratio Decidendi
The court found that the sentence of 10 years imprisonment for a first offender who pleaded guilty, expressed remorse, and where the stolen property was recovered, was manifestly harsh and excessive. Furthermore, convicting and sentencing the appellant on an alternative count was improper since the main count had already been admitted and sentenced. The court therefore set aside the conviction on the alternative count and reduced the sentence on the main count to time served, ordering the appellant's release unless otherwise lawfully held.
Court Disposition
Appeal allowed in part; conviction on alternative count set aside; sentence on main count reduced to time served; appellant released unless otherwise lawfully held.
Orders
- Conviction on the second alternative count is set aside.
- Sentence on the first count is reduced to time served.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 76 OF 2014
BETWEEN
KENNEDY OCHIENG ONGOLO…….…......……......... APPELLANT
AND
REPUBLIC …..…....…………………….……………...RESPONDENT
(Being an appeal from the original conviction and sentence in Criminal Case No. 357 of 2010 at Senior Resident Magistrate’s Court at Homa Bay, Hon. O.J. Ong’ondo, RM dated on 11th March 2010)
JUDGMENT
The appellant was charged with the offence of stealing stock contrary to section 278of thePenal Code (Chapter 63 of the Laws of Kenya). The particulars were that on 23rd December 2009 at Radiro village in Homa Bay County he stole one goat valued at Kshs.2000/= the property of Elisha Okoth Chuchu. He also faced an alternative charge based on the same facts of handling stolen goods contrary to section 322 of thePenal Codeand a second count of having suspected stolen property under section 323of thePenal Code.
He pleaded guilty on his own accord and was sentenced to 10 years imprisonment on the 1st count and 1 year imprisonment on the second count.
Mr. Oluoch, counsel for the State, readily conceded that the sentence was manifestly harsh and excessive and that the conviction on the second count as an alternative count was improper.
I agree that the concession was proper as the sentence was harsh. The accused was a first offender and the property was recovered. The appellant expressed remorse.
I therefore allow the appeal to the extent that I set aside the conviction on the second alternative count and reduce the sentence on the first count to time served.
The appellant is set free unless otherwise lawfully held.
DATEDandDELIVEREDatHOMA BAY this 6th day of November 2014.
D.S. MAJANJA
JUDGE