[2019] KEHC 12212 (KLR)
The court found that, although the offence of attempted theft of a motor vehicle is serious and does not warrant a non-custodial sentence, the applicants were first offenders and had pleaded for leniency. The trial court erred by not considering the option of a fine as the first line of punishment. The court...
Source-derived case information.
- Citation
- [2019] KEHC 12212 (KLR)
- Parties
- Applicant: Kenneth Muinde Nyongesa; Applicant: Vincent Aujenche Omlundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 493 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Conviction upheld; sentence revised from two years imprisonment to a fine of Kshs. 200,000 each, in default one year imprisonment.
- Legal Topics
- Sentencing Principles, Attempted Offences, Mitigation, Penal Code Section 389
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Muinde Nyongesa
Applicant
Vincent Aujenche Omlundi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the custodial sentence imposed on the applicants was appropriate given their status as first offenders.
- 2 Whether the sentence should be substituted with a fine in accordance with sentencing principles.
Ratio Decidendi
The court found that, although the offence of attempted theft of a motor vehicle is serious and does not warrant a non-custodial sentence, the applicants were first offenders and had pleaded for leniency. The trial court erred by not considering the option of a fine as the first line of punishment. The court determined that the appropriate sentence should be a fine of Kshs. 200,000 for each applicant, with a default custodial sentence of one year imprisonment if the fine is not paid. The original two-year custodial sentences were therefore set aside and substituted with the fine.
Court Disposition
Conviction upheld; sentence revised from two years imprisonment to a fine of Kshs. 200,000 each, in default one year imprisonment.
Orders
- The two-year jail terms for each applicant are set aside.
- Each applicant shall pay a fine of Kshs. 200,000; in default, serve one year imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 493 OF 2019
KENNETH MUINDE NYONGESA…..………..………….1ST APPLICANT
VINCENT AUJENCHE OMLUNDI………………………2ND APPLICANT
VERSUS
REPUBLIC……………………………………………..………RESPONDENT
RULING
1. The Applicants were charged with the offence of attempt to steal a motor vehicle contrary to Section 389 of the Penal Code. It was alleged that on 6/3/2018 at Commercial Parking Garage within JKIA in Nairobi, attempted to steal motor vehicle Reg. No.KCN 738X make Isuzu DMAX dust paper in colour, Valued at Kshs. 3,000,000/=, the property of Teresia Wairimu Nyoike.
2. After the trial, they were convicted and sentenced to each serve two years imprisonment.
3. A look at the trial proceeding shows that they were first offenders, reasons wherefore, the first line of punishment ought to have been the option of a fine. I do agree that a non-custodial sentence is not suitable owing to the seriousness of the offence. I do also note that each of them pleaded for leniency in their mitigation. This is also echoed in this application.
4. I accordingly think that they are remorseful. I set aside the two years jail terms in respect of each of the Applicants. I substitute it with an order that each of them will pay a fine of Kshs. 200,000/= in default serve one year imprisonment.
DATED and DELIVERED this 27th day of November, 2019
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Mr. Ayuo for the Applicants
2. M/s Akunja for the Respondent