[2009] KEHC 4042 (KLR)
The High Court found that the trial magistrate failed to exercise sentencing discretion judicially, as the sentence of four years imprisonment for a first offender convicted of stealing by servant was harsh and manifestly excessive. The court noted the absence of aggravating factors and the sketchy nature of the...
Source-derived case information.
- Citation
- [2009] KEHC 4042 (KLR)
- Parties
- Appellant: Loise Wanja Ngujiri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 50 of 2007
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence After Conviction
- Outcome
- sentence varied; appellant set at liberty
- Judges
- MSA Makhandia
- Legal Topics
- Stealing by Servant, Sentencing Principles, First Offender, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Wanja Ngujiri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence After Conviction
Legal Issues
- 1 Whether the sentence of four years imprisonment imposed on the appellant, a first offender convicted of stealing by servant, was harsh and manifestly excessive.
- 2 Whether the trial court exercised its sentencing discretion judicially and in accordance with legal principles.
Ratio Decidendi
The High Court found that the trial magistrate failed to exercise sentencing discretion judicially, as the sentence of four years imprisonment for a first offender convicted of stealing by servant was harsh and manifestly excessive. The court noted the absence of aggravating factors and the sketchy nature of the trial court's sentencing notes. Upon reconsideration of the facts and circumstances, the appellate court commuted the sentence to the eight months already served by the appellant, holding that the interests of justice required a more lenient approach for a first offender in the absence of justification for a severe sentence.
Court Disposition
sentence varied; appellant set at liberty
Orders
- The appellant's sentence is commuted to the eight months already served.
- The appellant is set at liberty forthwith.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Criminal Appeal 50 of 2007
LOISE WANJA NGUNJIRI ................................. APPELLANT
VERSUS
REPUBLIC ........................................................ RESPONDENT
(Appeal from original Conviction and Sentence in Senior Resident Magistrate’s Court at Karatina in Criminal Case No. 837 of 2006 dated 7th November 2006 by Mrs. Kimemia –R.M.)
J U D G M E N T
The only issue in this Appeal is sentence. The Appellant was charged with the offence of stealing by servant contrary to section 281 of the Penal Code. She pleaded not guilty to the charge and his trial ensued subsequent thereto she was convicted. Upon conviction, the Appellant was sentenced to four years imprisonment. The appellant was aggrieved by the conviction and sentence and hence lodged the instant Appeal. At the hearing of the appeal, the appellant elected to abandon the appeal on conviction but proceeded to argue the appeal on sentence. Mr. Orinda learned Senior Principal State Counsel was not averse to the idea.
I am now asked to interfere with that sentence and I have the power to do so as this is the first Appeal. I think however that my interference would only be necessary if there was a clear breach of the law or principle since it was within the discretion of the trial court to assess the appropriate sentence in all the circumstances of the case.
Mr. Orinda, did not oppose the appeal on sentence. Counsel in fact submitted that the conviction of the appellant was not safe. That the charge was at variance with the evidence. It was counsel’s view that the Appellant having been a first offender, the sentence imposed was harsh and manifestly excessive. Counsel therefore urged me to use my discretion and impose a more appropriate sentence.
I am of the view that considering that the Appellant was a first offender, the sentence imposed was harsh and manifestly excessive. There was no justification for such sentence. The Appellant was not a serial Criminal as to attract such a sentence. The learned trial magistrate notes on sentence in this matter are sketchy. Sentencing as already stated is a matter for the discretion of the court. The discretion must however be exercised judicially and not capriciously. The sentencing court must be guided by evidence and sound legal principles. The court must take into account all relevant factors and eschew all extraneous or irrelevant factors. Had the trial court approached sentencing in terms aforesaid, the sentence would perhaps have been different. Having reconsidered the facts and circumstances of this case, I would vary the sentences imposed in terms as follows. I commute the appellant’s sentence to the term of eight months she had served before she was released on bail pending appeal. The consequence of this order is that the appellant is set at liberty forthwith.
Dated and delivered at Nyeri this 29th day of January 2009.
M. S. A. MAKHANDIA
JUDGE