[2005] KEHC 3143 (KLR)
The court found that the appellant, having pleaded guilty to three counts of store breaking and committing a felony, should not have been subjected to consecutive sentences as the offences arose from the same transaction, the stores were in the same plot, and nothing was stolen. The court held that the trial...
Source-derived case information.
- Citation
- [2005] KEHC 3143 (KLR)
- Parties
- Appellant: Kyalo Wambua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 229 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Principles, Plea of Guilty, Concurrent Sentences, Store Breaking, Penal Code Section 307
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kyalo Wambua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the consecutive sentencing imposed by the trial court was harsh and excessive in the circumstances.
- 2 Whether the sentences should have been ordered to run concurrently given the facts of the case.
Ratio Decidendi
The court found that the appellant, having pleaded guilty to three counts of store breaking and committing a felony, should not have been subjected to consecutive sentences as the offences arose from the same transaction, the stores were in the same plot, and nothing was stolen. The court held that the trial magistrate failed to consider these mitigating factors, including the appellant's plea of guilty and the fact that the maximum sentence under Section 307 of the Penal Code is five years. The court determined that the sentences should run concurrently, not consecutively, and thus allowed the appeal to the extent of ordering the sentences to run concurrently.
Court Disposition
appeal_allowed_in_part
Orders
- The appellant is sentenced to three years imprisonment on each count, sentences to run concurrently.
- Appeal is allowed to the extent that sentences run concurrently.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Criminal Appeal 229 of 2003(From Original conviction (s) and Sentence (s) in Criminal Case No. 988 of 2002 of the Resident Magistrate’s Court at Makindu R. MIBEI R.M on 27/11/02) KYALO WAMBUA …………………………………………………….. APPELLANT VERSUS REPUBLIC ……………………………………………………………. RESPONDENT J U D G E M E N T The appellant was convicted on three counts of store breaking and committing a felony Contrary to Section 307 of the Penal Code by Resident Magistrate’s Court, Makindu. The offences were allegedly committed on the night of 16th and 17th November 2002 at Ikoyo Market, Kiboko location. The appellant was convicted on his own plea of guilty and sentenced to serve 3 years imprisonment on each count and the sentences were to run consecutively.
The appellant filed this appeal against both conviction and sentence but in arguing his appeal, he has abandoned the appeal on conviction and only pursued his appeal on sentence. His argument is that the order that the sentences run consecutively is harsh and urges court to be merciful and lenient and that he is remorseful. He urges the court to reduce the sentence.
The learned state counsel conceded to the appeal and submitted that the sentence was too harsh.
The stores which were broken into by appellant were in the same plot and he was arrested before he stole anything. The maximum sentence that can be meted under Section 307 Penal Code is 5 years imprisonment. Appellant then pleaded guilty. Even if it was a deterrent sentence, the court should have taken into account all the above factors before sentencing. I do agree that the sentence is harsh and I will order that the appellant be sentenced to three years imprisonment on each count but that they do run concurrently. Appeal is allowed to that extent.
R.V. WENDOH JUDGE
Dated at Machakos this 3rd day of October 2005
Read and delivered in the presence of
R.V. WENDOH JUDGE