[1987] KEHC 42 (KLR)
The court found that the trial magistrate erred by imposing a single omnibus sentence for two distinct offences—housebreaking and stealing from a dwelling house. The law requires that each offence be sentenced separately, and that the offence of stealing from a dwelling house carries a mandatory corporal punishment....
Source-derived case information.
- Citation
- [1987] KEHC 42 (KLR)
- Parties
- Appellant: Linge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 92 of 1987
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence revised
- Judges
- A Mohammed
- Legal Topics
- Housebreaking, Stealing From Dwelling, Sentencing Revision, Corporal Punishment
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the omnibus sentence imposed for two distinct offences was proper.
- 2 Whether the sentence should have included mandatory corporal punishment for stealing from a dwelling house.
- 3 Whether the appellant's guilty plea and status as a first offender warranted leniency.
Ratio Decidendi
The court found that the trial magistrate erred by imposing a single omnibus sentence for two distinct offences—housebreaking and stealing from a dwelling house. The law requires that each offence be sentenced separately, and that the offence of stealing from a dwelling house carries a mandatory corporal punishment. Considering the appellant's guilty plea, first offender status, and recovery of the stolen property, the court revised the sentence to six months imprisonment for each offence, to run concurrently, and imposed one stroke of corporal punishment as required by law.
Court Disposition
sentence revised
Orders
- The sentence is revised to 6 months imprisonment for housebreaking and 6 months for stealing, to run concurrently.
- The appellant shall receive one stroke of corporal punishment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO 92 OF 1987
LINGE………,……………….………APPELLANT
V
REPUBLIC………………………..RESPONDENT
JUDGMENT
The appellant was convicted of housebreaking contrary to section 304(1) of the Penal Code and stealing from the dwelling house contrary to section 279(b) of the said Code. He was sentenced to 2 years imprisonment.
The appellant pleaded guilty to the charge. The stolen door of the complainant was found in the house of the appellant. On admitted facts, the appellant was properly convicted.
In mitigation, the appellant said that the complainant was his employer and prayed for leniency.
In his memorandum of appeal, the appellant pleads that he stole out of necessity to provide for his family and that he wishes to be out to pursue claim against the person who killed his father.
The appellant is a first offender. The stolen door was recovered. He pleaded guilty.
The magistrate erred in awarding omnibus sentence of two years for two distinct offences namely house breaking and stealing. He ought to have been sentenced on each limb of he charge. Moreover, the offence of stealing from dwelling house carried mandatory corporal punishment. It is therefore necessary to revise the sentence.
Having regard to all the circumstances, the sentence is revised so that he shall undergo a sentence of 6 months imprisonment for housebreaking and 6 months for stealing together with one stroke of corporal punishment.
The prison sentences shall run concurrently.
These are the orders of the court.
May 15, 1987
ABDULLAH
JUDGE