[2000] KEHC 568 (KLR)
The High Court held that while the sentence of 3 years imprisonment was lenient compared to the statutory maximum of 10 years, the award of 5 strokes of the cane was excessive given that the appellant was a first offender and pleaded guilty. The trial magistrate did not properly exercise discretion in awarding 5...
Source-derived case information.
- Citation
- [2000] KEHC 568 (KLR)
- Parties
- Appellant: Kingi Julius Nzai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 177 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Judges
- AI Hayanga
- Legal Topics
- Sentencing Principles, Corporal Punishment, Burglary, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kingi Julius Nzai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was excessive or based on a wrong principle.
- 2 Whether the award of 5 strokes of the cane was appropriate in the circumstances.
Ratio Decidendi
The High Court held that while the sentence of 3 years imprisonment was lenient compared to the statutory maximum of 10 years, the award of 5 strokes of the cane was excessive given that the appellant was a first offender and pleaded guilty. The trial magistrate did not properly exercise discretion in awarding 5 strokes. The court therefore retained the 3-year imprisonment but reduced the corporal punishment to 1 stroke of the cane, finding this to be a more appropriate exercise of sentencing discretion in the circumstances.
Court Disposition
appeal_partially_allowed
Orders
- The sentence of 3 years imprisonment is upheld.
- The corporal punishment is reduced from 5 strokes to 1 stroke of the cane.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL DIVISION
CRIM APP 177 OF 00[1]
KINGI JULIUS NZAI ……………………………………………………. APPELLANT
- versus -
REPUBLIC …………………………………………………………….. RESPONDENT
J U D G E M E N T
Appellant was charged with burglary and stealing contrary to Section 304(2) & 279 (b) of the Penal Code. It was alleged that on 12/13 April, 2000 at Kwa Hadija Village Watamu village in Malindi District he entered and broke into and stole therein one radio cassette, one car battery, one bag, 22 cassettes and cash KShs.2,500/- total value of KShs.13,000/-. He pleaded guilty and was convicted on his plea. He was sentenced to 3 years and 5 strokes of the cane and he now appeals against the sentence. He has not said much but wishes that the corporal punishment be waived. Mr. Gumo Senior State Counsel supports the sentence in any case.
The principle this court applies on first appeal as to sentence is that it would not interfere with the discretion of trial court below unless the sentence awarded is against the principles or is too excessive or too lenient as to amount to application of wrong principle.
Here the maximum is 10 years together with corporal punishment. He was given 3 as against that, but although it is lenient it must be realized that he was a first offender and pleaded guilty. I think the award of 5 strokes was a little high handed. The learned Magistrate in my view did not properly exercise her discretion here and I feel I should interfere. I will retain the 3 years sentence but reduce the corporal punishment to 1 stroke of the cane. Appeal therefore succeeds as to that extent.
Dated this 5th Day of October, 2000.
A.I. HAYANGA
JUDGE