[1985] KEHC 67 (KLR)
The High Court found that the trial magistrate erred in imposing a custodial sentence on the appellant, a 15-year-old first offender, solely on the basis of his foreign nationality. The law and relevant authorities permit the use of alternatives to imprisonment, such as absolute or conditional discharge, even for...
Source-derived case information.
- Citation
- [1985] KEHC 67 (KLR)
- Parties
- Appellant: Loramatu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 30 of 1985
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Stock Theft, Sentencing of Minors, Probation and Discharge, Foreign Nationals in Criminal Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Loramatu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 7 years' imprisonment for a 15-year-old first offender convicted of stock theft was appropriate.
- 2 Whether alternatives to imprisonment, such as probation or discharge, were available and applicable to foreign nationals.
Ratio Decidendi
The High Court found that the trial magistrate erred in imposing a custodial sentence on the appellant, a 15-year-old first offender, solely on the basis of his foreign nationality. The law and relevant authorities permit the use of alternatives to imprisonment, such as absolute or conditional discharge, even for foreign nationals. The appellant's youth, guilty plea, and lack of prior offences warranted leniency. The court set aside the sentence of imprisonment and substituted it with an absolute discharge under section 35 of the Penal Code, ordering the appellant's immediate release unless otherwise lawfully held. The same order was extended to the co-accused Sidiyo Kulesoi, despite his...
Court Disposition
appeal_allowed
Orders
- The sentence of imprisonment imposed on the appellant is set aside.
- The appellant is given an absolute discharge under section 35 of the Penal Code.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court, at Nairobi
Criminal Appeal No 30 of 1985
Loramatu
versus
Republic
(Appeal from the Resident Magistrate’s Court at Nairobi, N Nyaanga, Miss)
Advocates
Appellant absent, unrepresented and not wishing to be present
A Haq (State Counsel) for respondent
October 14, 1985, Mbaya J delivered the following
Judgment.
The appellant and three others were jointly charged with stock theft contrary to section 278 of the Penal Code. The particulars of the charge stated that they:
“On the 28th day of October, 1984 at Nairobi West within the Nairobi Area jointly stole one sheep valued at Kshs 300 the property of Lucas Mwenda.”
All the accused persons pleaded guilty to the charge and on conviction the appellant and one of his co-accused Sidiyo Kulesoi were each sentenced to 7 years’ imprisonment whereas the other two accused persons were placed on probation. Both the appellant and Sidiyo Kulesoi are Tanzanians. The appellant was aged 15 at the time of the sentence.
I must commend the learned trial magistrate for appreciating, what is much often forgotten by the subordinate courts, that in circumstances such as appertain in this case, there are alternatives to the minimum sentences of imprisonment in form of a probation, or an absolute or conditional discharge: See Mwangi v R 1971 E A 3807 and my decision inThomas Kerio s/o Echumani v R Eldoret H C C A No 110 of 1982 (unreported).
In the instant case the appellant and his Tanzanian co-accused merely joined people who were eating goat meat. The appellant is a young person who pleaded guilty and was a first offender. The only reason why he and his Tanzanian co-accused were not placed on probation is because the learned trial magistrate felt, I think quite rightly that a probation sentence would be inconvenient because the appellant and his named co-accused were foreigners. But on the authorities I have cited there was nothing to prevent the giving of an absolute or condition discharge. The result of this appeal therefore, is that I set aside the sentence of imprisonment imposed on the appellant, and in its place I order that he be given an absolute discharge under section 35 of the Penal Code. In exercise of my powers of remission, I also make similar order for Sidiyo Kulesoi who has not appealed. Both will be released from prison forthwith unless otherwise lawfully held, but the trial magistrates recommendation for their repatriation to Tanzania will remain.
Delivered on the October 14, 1985
Mbaya J